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The Ohio State University

1989

The Spycatcher Cases

Dane, Philomena M. Ohio State Law Journal, vol. 50, no. 2 (1989), 405-445.http://hdl.handle.net/1811/64483

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Ohio State Law Journal (Moritz College of Law) Ohio State Law Journal: Volume 50, Issue 2 (1989)

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http://hdl.handle.net/1811/64483

Case Comments

The Spycatcher Cases

If the publication of this book in America is to have, for all practical purposes, the effectof nullifying the jurisdiction of the English courts to enforce compliance with the duty ofconfidence, ... then, . . . the English law would have surrendered to the AmericanConstitution. There the courts, by virtue of the First Amendment, are, I understand,powerless to control the press. Fortunately, the press in this country is, as yet, not above thelaw. . ..

With this statement, Lord Ackner has, perhaps unwittingly, illustrated the vast

difference between the freedom of the press in England and in the United States. Inthe United States, the Supreme Court has consistently maintained that any system of

prior restraint bears a strong "presumption against its constitutional validity. ' 2 The

government, therefore, "carries a heavy burden of showing justification for theimposition of such a restraint." ' 3 That burden is not reduced simply because thegovernment seeks a temporary injunction against the press, because even a slightdelay would interfere with the press's "traditional function of bringing news to the

public promptly." ' 4 In England, however, the presumption is just the opposite. Thecourts, when balancing the competing interests between preserving confidentialityand keeping the public informed, resolve the conflict in favor of prior restraint unlessthe latter interest clearly outweighs the public interest in maintaining confidence. 5

The difference between these two approaches is demonstrated by the Spycatcher

cases. If these cases had arisen in the United States, the British claims would havebeen rejected in a manner similar to the Supreme Court's dismissal of the temporary

injunctions against the New York Times and Washington Post in New York Times Co.

v. United States.6 In both England and the United States the press sought to disclosesecret activities of the respective governments regarding matters of public concern,and the governments relied on their national security interests to restrain the press.

The British government's claims, moreover, did not rest on a statutory authorizationallowing for injunctive relief, but rather on a common law action for breach of

confidence. 7 Furthermore, much of the information disclosed by Peter Wright in his

book, Spycatcher, had previously been made public, and thus, the national security

1. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1306 (H.L.(E.)) (per Lord Ackner).

The statement was made in his opinion upholding the temporary injunction that restrained the press from publishinginformation obtained from Peter Wright or from his book Spycatcher.

2. New York Times Co. v. United States, 403 U.S. 713, 714 (1971).3. Id.4. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976).5. See, e.g., Lion Lab. Ltd. v. Evans [19851 1 Q.B. 526 (C.A.). See infra text accompanying notes 81-93.6. 403 U.S. 713 (1971).7. The concurring opinions of Justices White and Marshall, for example, suggest that if statutory authorization

had existed, the result of the case might have been different. New York Times Co., 403 U.S. at 730-48. See United Statesv. Progressive, Inc., 467 F. Supp. 990 (V.D. Wis. 1979), in which the court upheld an injunction against the Progressive

based on the danger of the information published and specific statutory authorization of the injunction. The suit was later

dismissed because the information had been independently published by others. United States v. Progressive, Inc., 610F.2d 819 (7th Cir. 1979).

OHIO STATE LAW JOURNAL

interest was limited to deterring others from emulating Wright. 8 A court in the UnitedStates would not have found the British government's interests sufficient to meet itsburden to restrain the press from publishing the allegations disclosed by Wright andtherefore would have dismissed its claim for a temporary injunction.

The Spycatcher cases did not, of course, arise in the United States, so the Britishgovernment was successful in silencing the press. In fact, the various court decisionsillustrate the government's ability to withhold from the public information it deemscontrary to national security and also demonstrate the lengths to which thegovernment will go to preserve its interests in confidentiality.

This Comment will focus on those cases, providing an overview of the legaltheories used by the press and the government, and a description of the courtdecisions, showing the ease with which the courts resolved the competing interests infavor of the government. Part I will provide the relevant facts of the cases. Part II willoutline the law of breach of confidence and the provisions of the Contempt of CourtAct. Part III will describe the series of cases in which the English courts upheld atemporary injunction restraining the press from publishing any information directly orindirectly attributable to Peter Wright. The cases that established and upheld theapplicability of contempt of court actions against those newspapers and libraries notbound by the original injunction will also be treated in Part HI. Part IV will focus onthe Hong Kong decisions in which the courts upheld a similar injunction against theSouth China Morning Post, and Part V will cover the English courts' decisionsrefusing to grant the government a permanent injunction.

I. BACKGROUND AND FAcTs

Peter Wright joined the British Service, M.I.5, 9 in 1955 as a scientific advisorin its counterespionage branch. 10 During the last years of his service, he acted as apersonal consultant to the Director General on counterespionage and devoted his timeto determining the extent of Soviet penetration of the Service. It When he joined theService and again upon his retirement in 1976, Wright signed a declaration similar tothose signed by all civil servants, acknowledging that he was liable to prosecution ifhe communicated any information he obtained as a result of his position, unless theinformation had been officially made public or the Service gave him permission.12

8. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 822-31 (Ch. D.). In thetrial on the main action between the government and the newspapers, the court pointed out that the allegations made inSpycatcher had been published previously in 12 other books and 3 television programs, including I program that includedan interview with Peter Wright. The government had not taken any action to prevent these publications or broadcasts, eventhough they covered materials similar to those contained in Spycatcher.

9. Military Intelligence 5, which is responsible for defending the United Kingdom against espionage, sabotage,and subversion, is similar to the FBI. The British Security Service, of which M.I.5 is a branch, is required to remain freefrom any political bias and is not allowed to make inquiries on behalf of government departments unless an importantpublic interest relating to defense is involved. See Maxwell-Fyfe Directive, quoted in Attorney-General v. GuardianNewspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 813 (Ch. D.).

10. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [19881 2 W.L.R. 805, 813 (Ch. D.).11. Id.12. See REPORT OF THE COMM'N ON SEcriON 2 OF iTE OFmcIAL SEcREtrs Acr 1911, 1972, CMND. 5104, at 19. All

employees of the government and anyone receiving confidential information sign a declaration acknowledging that theyare liable for prosecution under the Act if they disclose information in violation of the Official Secrets Act. While these

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19891 THE SPYCATCHER CASES 407

After his retirement, Wright submitted a memorandum to the Chairman of theSelect Committee of the House of Commons calling for an inquiry into the Service. 13

He alleged that Sir Roger Hollis, the former director of M.I.5, was a Soviet agent andthat members of the Service had conspired to destabilize the Labor government ofPrime Minister Harold Wilson.14 When Wright decided the Committee's investiga-tion was inadequate, he made arrangements with Heinemann Australia to publish hisaccount of the Service in the book Spycatcher.'5

When the British government learned of Wright's plan in September of 1985, it

began proceedings against Wright and his publisher in New South Wales seeking aninjunction against publication, or, in the alternative, an accounting of profits. 16 BothWright and Heinemann agreed not to publish his work until the Australian courtsreached a decision.17

In June of 1986 The Guardian and Observer, in articles on the upcomingtrial in Australia, published outlines of the allegations made by Wright in hisunpublished manuscript.1 8 The Attorney General immediately obtained a temporaryinjunction, which the Court of Appeal upheld on July 25.19 The injunction prohibitedthe papers from publishing any information from or attributed to Wright, but allowedfor disclosure of information previously published in other books and on televisionprograms broadcast in England. 20 In addition, the injunction allowed the papers topublish information disclosed in open court in New South Wales and Parliament.2 1

The trial in Australia received a great deal of publicity in England, and on March13, 1987, Justice Powell in New South Wales dismissed the Attorney General'sclaim. He decided that while Wright did not have a statutory duty of confidence, hedid have an equitable one.22 However, because the bulk of the information Wrightsought to disclose was in the public domain, Justice Powell held that the Britishgovernment had not demonstrated that the publication of the remaining confidentialinformation would cause any detriment to the government. 23 The Attorney General

declarations have no legal force, they do outline the restrictions governing the use of official information for nonofficialpurposes.

13. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 946 (Ch. D.).14. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 822-31 (Ch. D.) for an

overview of Wright's allegations. See also Freeman, Peter Wright: The Real Story, The Sunday Times, Oct. 16, 1988,

at 16, col. 3. According to Freeman, Wright admitted that he, in fact, was the ringleader in the plot to destabilize Wilsonand that instead of 30 officers being involved as he claimed in Spycatcher, there were only 8.

15. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 946 (Ch. D.).16. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 815 (Ch. D.).17. Id.18. Attorney-General v. Observer, Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file). The Observer

article, for example, included Wright's allegations that M.I.5 had "bugged" various friendly and unfriendly diplomaticoffices; that Guy Burgess had attempted to seduce Churchill's daughter, and that M.I.5 had plotted to assassinate PresidentNasser of Egypt. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 872 (C.A.).

19. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 815-16 (Ch. D.).20. Id. See also supra note 8.21. Id. at 815-16.22. See Attorney-General (U.K.) v. Heinemann Publishers Austl. Ltd. [1987] 8 N.S.W.L.R. 341.23. Id.


appealed that decision, and Wright and Heinemann again agreed to delay publicationuntil the appeal was decided. 24

In April of 1987 the Independent and two other London papers published majorsummaries of Wright's book, as did the Melbourne Age and Canberra Times. OnMay 3 the Washington Post also published a summary of Wright's allegations. 25 TheAttorney General immediately began proceedings against the English papers forcontempt of court. 26 At the same time, The Guardian and Observer applied to thecourt to lift the injunction against them in light of the other papers' disclosures ofWright's allegations. 27 The court postponed the latter application pending theresolution of the contempt of court proceedings. 28

On May 14 Viking Penguin announced its intention to publish Spycatcher in theUnited States. The British government tried to convince the parent company ofViking, a British corporation, to use its powers to dissuade the New York subsidiaryfrom publishing the book, but the corporation declined to do SO. 29 The government,in addition, considered taking legal action against Viking to restrain publication andto seek an accounting of profits, but did not do So. 30 The government decided thatsuch an action would be unsuccessful given the first amendment and the presumptionagainst prior restraint in the United States. 31

On June 2 the Vice-Chancellor dismissed the contempt of court charges againstthe Independent and the other papers that had published summaries of Wright'sallegations. 32 The Attorney General appealed the decision. While this appeal waspending, the editor of the Sunday Times, who had obtained serialization rights ofSpycatcher from Heinemann, secretly arranged with Viking to obtain a copy of themanuscript so that he could publish excerpts of the book to coincide with itspublication in the United States. 33 In order to avoid government detection and toinsure that at least some of the Wright material would be published, the Sunday Timesdid not include any of it in the first edition but saved the excerpts for the secondedition of the paper, published on the evening of July 12. 3 4 The Attorney General,therefore, had to wait until the next day to begin proceedings against the paper forcontempt of court and to obtain an injunction restraining further publication.35

24. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 816 (Ch. D.). The NewSouth Wales Court of Appeal upheld the court's decision. See Attorney-General (U.K.) v. Heinemann Publishers Austl.Ltd. [1987] 10 N.S.W.L.R. 86. Special leave to appeal to the High Court was given, but Heinernann was allowed topublish the book, and thus, on October 13, 1987, Spycatcher was available in Australia. In June of 1988 the High Courtdismissed the Attorney General's appeal. The court refused to grant jurisdiction to enforce an obligation of confidence toprotect a foreign government's "intelligence secrets and confidential political information." See Attorney-General v.Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 780 (H.L.(E.)) (per Lord Keith of Kinkel).

25. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 816-17 (Ch. D.).26. Id. at 816.27. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1255 (Ch. D.).28. Id.29. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 817 (Ch. D.).30. Id.31. Id.32. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1256 (Ch. D.).33. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 817-18 (Ch. D.).34. Id.35. Id.

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1989] THE SPYCATCHER CASES 409

On the very next day, July 14, 1987, Viking published Spycatcher in the UnitedStates, where it immediately became a best seller. One New York bookseller,claiming that the British were his "keenest" customers, ran out of copies by noon ofthat day. 36 Prime Minister Thatcher, however, ruled out any attempts to stopimportation of the book, stating that such efforts were likely to be ineffective. 37 Asa result of that decision, British citizens were free to purchase copies of the book frombooksellers in the United States. One enterprising individual, claiming that the PrimeMinister would be proud of his initiative, flew to New York, purchased 80 copies ofSpycatcher, and, dressed as Uncle Sam, sold them in England. He was arrested, notfor importing the book, but for selling without a vendor's license. 38

Meanwhile, the Attorney General's appeal of the contempt of court dismissalswas decided with the Court of Appeal's holding that any further publication of the

Wright material would constitute contempt of court. 39 As a result of that decision, theSunday Times appealed to the European Commission of Human Rights, and that caseis still pending. 4° Because the contempt of court case had been decided, TheGuardian and Observer renewed their application to have the injunction against themdismissed.4 1 That action, joined by the Sunday Times, was heard on July 20 with theVice-Chancellor dismissing the injunction. 42 The Attorney General appealed thatdecision, and the Court of Appeal reversed the Vice-Chancellor's decision on July

24. 4 3 The newspapers then appealed to the House of Lords, which upheld the Courtof Appeal's decision and, in addition, modified the injunction to prohibit publicationof any Wright material disclosed in open court in Australia. 44

During this time period, the South China Morning Post in Hong Kong, TheDominion in New Zealand, and the Nation in East Africa all published serializedexcerpts from Spycatcher. The Attorney General obtained a temporary injunctionrestraining the first two papers from publishing further excerpts of the book.45 InNovember of 1987 the injunction against the New Zealand paper was dismissed withthe court refusing to grant a temporary injunction pending appeal of its decision. 46

36. The Guardian, July 15, 1987, at 1, col. 3. As of October of 1987, Viking Penguin had printed 715,000 copiesof Spycatcher, and from August to October, the book was listed as a best seller for nine weeks. Similar sales occurredin Canada. As of August of 1987, there were estimates that 10,000 copies of Spycatcher were entering England eachweek. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 820-21 (Ch. D.).

37. The Guardian, July 15, 1987, at 1, col. 2.38. The Guardian, July 28, 1987, at 30, col. 6.39. Attorney-General v. Newspaper Publishing Plc. [1987] 3 W.L.R. 942, 958 (C.A.).40. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 818 (Ch. D.).41. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1255 (Ch. D.).

42. Id. at 1257.43. Id. at 1271-82.44. Id. at 1282-1321.45. See Attorney-General v. South China Morning Post Ltd., No. 114 (Civil) Sept. 8, 1987; Attorney-General v.

South China Morning Post Ltd., No. 4644 (HC) Aug. 24, 1987 (on file at the Ohio State Law Journal). In addition, theBritish government obtained a temporary injunction against serialization of the book by The Dominion, the main dailynewspaper in Wellington, New Zealand. The Guardian, Aug. 5, 1987, at 1, col. 8. As of August 25, 1987, thegovernment had not decided whether it would take similar action against the Nation, East Africa's largest daily, whichalso published abstracts. The Times, Aug. 25, 1987, at 16, col. 1.

46. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [19881 2 W.L.R. 805, 820 (Ch. D.). The New ZealandCourt of Appeal upheld the lower court's decision in April of 1988. Attorney-General v. Wellington Newspapers Ltd.

410 OHIO STATE LAW JOURNAL [Vol. 50:405

In December of 1987 the trial on the main action occurred in England. The trialcourt dismissed the injunction against the Observer, The Guardian, and the SundayTimes, but the court held the Sunday Times liable for any profit that resulted from thepaper's publication of the Wright excerpts in July. 47 Both the Court of Appeal andthe House of Lords upheld the lower court's decision. 48 Thus, on October 13, 1988,over two years after the Attorney General obtained the initial injunction, newspapersin England were free to comment on the allegations made in Spycatcher.

In all of the Spycatcher cases, the British government relied on the common lawaction of breach of confidence. The Attorney General argued that because Wrightowed a duty of confidence to the government, and the newspapers were aware of thatduty, they too were bound by his obligation of confidence. Thus, their publication ofany material Wright disclosed in breach of his duty to the government was a breachof their own duty. Once the Attorney General was successful in obtaining aninjunction against the Observer and The Guardian, he argued that any furtherpublication of the Wright material would destroy the subject matter of his suit againstthose papers, and, thus, constituted contempt of court. In order to place in perspectivethe approach used by the Attorney General, a brief overview of the law of confidenceand the provisions of the Contempt of Court Act is necessary.

II. REsTRAiNTs ON THE PRESS

A. Breach of Confidence

A 16th-century verse concerning the Chancellor's power states:

These three give place in court of conscience,Fraud, accident, and breach of confidence. 49

The rhyme reflects the long history of the law of confidence, and although earliercases have been reported, the Victorian period marks the foundation of the modemaction for breach of confidence. 50 The scope of the action is quite broad, coveringeverything from trade and government secrets and artistic confidences to communi-cations between spouses. 5' No current statute focuses exclusively on the law ofconfidence, 52 but various statutes do include provisions that refer to confidentialinformation in connection with their own statutory purpose. 53 Section 87(5) of the

(unreported), Apr. 28, 1988 (noted in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 790(H.L.(E.))).

47. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 820 (Ch. D.).48. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776 (H.L.(E)). These decisions,

however, did not end the legal battles over Spycatcher. Several newspapers published excerpts of the Wright material indefiance of the earlier House of Lords decision, and the Attorney General had begun contempt proceedings against them.The Guardian, Aug. 1, 1987, at 1, col. 2.

49. B. RED, CONFIDENTIArTY AND THE LAw 1 (1986) (quoting comment by Maitland in EQurry/Two CotusEs OFLEcruRE 7 (1910)).

50. Id. at 7; see also F. GuRRY, BEACH OF CONFIDENCE 3 (1984).51. F. GutuY, supra note 50, at 90-108.52. But see LAw COMM'N, BRtacH OF CONFIDENCE, 1981, CZAND. No. 8388, at 179 [hereinafter BREACH OF

CONFIDENCE] (proposal for a statutory tort of breach of confidence).53. B. REID, supra note 49, at 2; F. GURRY, supra note 50, at 237-38, 468-73.


Food Act of 1984, for example, prohibits disclosure of any trade secrets obtained byan inspector unless the disclosure is made in the performance of duty. 54 The law ofconfidence, however, is predominantly judge-made rather than statutory.

The jurisdictional basis of the action is uncertain: courts have granted relief onthe basis of contract, property, and equity. 55 The theory used depends on the natureof the information involved and the circumstances under which the information hasbeen disclosed.5 6 While this uncertainty does not affect the existence of thejurisdiction, it may affect the remedy used in a particular case. 57

The modern formulation of the action is found in Saltman Engineering Co. v.Campbell Engineering Co. 58 per Lord Greene: "If a defendant is proved to have usedconfidential information, directly or indirectly obtained from a plaintiff, withoutconsent, express or implied, of the plaintiff, he will be guilty of an infringement ofthe plaintiff's rights." 59 In order for a claim to be successful, the plaintiff must provethree elements. First, the information itself must be confidential. 6° Second, theinformation must have been given in circumstances that imposed an obligation ofconfidence. 61 Third, there must be a breach of that obligation; the defendant musthave made unauthorized use of the information to the detriment of the plaintiff.62

For information to be confidential, it must not be public knowledge or publicproperty.63 A piece of information may, however, be available for anyone's use andstill be confidential: "what makes it confidential is the fact that the maker of thedocument had used his brain and thus produced a result which can only be producedby someone who goes through the same process.' '64 Information may also be publicknowledge in some locations and still be confidential in others. 65 Moreover, forpublication to destroy the confidentiality, all the details must be disclosed, 66 and evenif all details have been divulged, the context in which the disclosure occurred and theassociation of the information to that context may still make the informationconfidential. 67 A defendant may, for example, be restrained from using informationin the public domain if that information came to her in confidence and gives her anunfair advantage over the plaintiff. 68

54. B. REID, supra note 49, at 2.55. F. GuRRY, supra note 50, at 26; see also BREACH OF CONFIDENCE, supra note 52, at 3.1-5.2.56. F. GuRRY, supra note 50, at 59.57. BREACH OF CONFIDENCE, supra note 52, at 5.2 n.483; F. GuRRY, supra note 50, at 58-61.58. [1963] 3 All E.R. 413.59. Id. at 414.60. Id. at 415; Coco v. A.N. Clark (Eng'rs) [1969] R.P.C. 41, 47.61. Coco v. A.N. Clark (Eng'rs) [1969] R.P.C. 41, 47.62. Id.63. Saltman Eng'g Co. v. Campbell Eng'g Co. [1963] 3 All E.R. 413, 415.64. Id.65. See Franchi v. Franehi [1967] R.P.C. 149; ExchangeTel. Co. v. Central News Ltd. [1897] 2 Ch. 48; F. GuRRY,

supra note 50, at 74-75.66. F. GuanY, supra note 50, at 74-75.67. Id.68. BRE.ACH OF CoN'mENcE, supra note 52, at 3.15. See also Schering Chem. Ltd. v. Falkman Ltd. [1982] 1 Q.B.

1, 2 (C.A.); Terrapin Ltd. v. Builders' Supply Co. [1967] R.P.C. 41; Exchange Tel. Co. v. Central News Ltd. [1897]2 Ch. 48.

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The circumstances under which an obligation of confidence arises will vary.While an obligation may arise out of a contractual relationship-either express orimplied-a contract is not required.6 9 The key is whether the information wasdisclosed to the confidant for a limited purpose and if so, whether the confidant wasaware of the limitations on the use of the information. 70 The test of whether theconfidant knew of the limitations is not clear,71 but Judge Megarry in Coco v. A.N.Clark (Engineers)72 used a reasonableness test to imply an obligation in equity:

It seems to me that if the circumstances are such that any reasonable man standing in theshoes of the recipient of the information would have realised that upon reasonable groundsthe information was being given to him in confidence, then this should suffice to imposeupon him the equitable obligation of confidence.73

In some cases the limited use restriction will be clear from the circumstancessurrounding the disclosure, as in the case of an express contract or a statutory dutyof secrecy. In other instances, it may be implied from custom, on the basis of anemployment relationship, or implied by using a reasonable person test.74

If the plaintiff establishes that the information was confidential and that thedefendant was aware of it, then the plaintiff has to establish that the defendantbreached the obligation by making unauthorized use of the information. The questionis a factual one, and the court will look at whether the information used was directlyor indirectly obtained from the confider, and whether the use was inconsistent withthe purpose for which it was given.75

A plaintiff must prove the same elements when a third party discloses confidentialinformation, but this area of the law is uncertain. 76 It appears that if a third party hasactual knowledge of the confidential nature of the information at the time of receivingit, she can be held liable for its disclosure if she stands to gain an advantage over theplaintiff, or if she aids the confidant in his breach. 77 If, however, she lacks actualknowledge and has no reason to know of the confidence, she will not be liable for itsdisclosure.78 Furthermore, it is not clear whether an innocent third party who purchasesthe information for value can be held liable. If she has not changed her position inreliance on the information, some courts may, nevertheless, impose an obligation onher if the plaintiff will be harmed by the breach, but other courts will not.79

69. See Seager v. Copydex Ltd. [1967] 1 W.L.R. 923, 931 (C.A.) ("The law on this subject does not depend onany implied contract. It depends on the broad principle of equity that he who has received information in confidence shallnot take unfair advantage of it."); F. GuRty, supra note 50, at 89-108.

70. F. GuRRY, supra note 50, at 113.71. Id. at 115-20; BREACH OF CONFIDENCE, supra note 52, at 4.4.72. [19691 R.P.C. 41.73. Id. at 47.74. F. GuRRY, supra note 50, at 120.75. Id. at 256-57.76. Id. at 270; BREACH OF CONFIDENCE, supra note 52, at 4.11-4.12, 6.52-6.55.77. See F. GuRRY, supra note 50, at 271; BREACH OF CONFIDENCE, supra note 52, at 4.11. See also Schering Chem.

Ltd. v. Falkman Ltd. [ 1982] 1 Q.B. I (C.A.). In Schering the court granted an interlocutory injunction restraining ThamesTelevision, a third party, from broadcasting a television program because Thames used information knowing it came froma confidant who breached his duty of confidence.

78. F. GURRY, supra note 50, at 275. See also Fraser v. Thames Television Ltd. [1984] 1 Q.B. 44, 65 (C.A.) ("inorder to be fixed with an obligation of confidence, a third party must know the information was confidential").

79. F. GuRRY, supra note 50, at 275-83.

THE SPYCATCHER CASES

If the plaintiff establishes a cause of action for breach of confidence, whether itbe against someone with whom he has a direct relationship or a third party, thedefendant has several defenses at his disposal.8 0 The primary defense is that thedisclosure was made in the public interest. 81 The defense is outlined in LionLaboratories Ltd. v. Evans,82 in which Stephenson, L.J., relying on previousdecisions, 83 describes the factors considered. The court focuses on the two competinginterests involved: the public interest in preserving confidentiality and the counter-vailing interest of the public in being informed of matters that are "of real publicconcern." 8 4 If the information satisfies the requirements of public concern, individ-uals or the press may have a duty to disclose the information even though theyobtained it unlawfully. 85

Courts consider four factors to determine matters of public concern. First, courtsnote the "wide difference between what is interesting to the public and what is in thepublic interest to make known." ' 86 The general public may, for example, beinterested in a piece of gossip about a member of the Royal family, but disclosure ofthat information may not be in the public interest. Second, with respect to the press,courts look at whether the "public interest" is, in fact, a private interest in increased

circulation. 87 Third, courts consider whether the public interest will be best served bydisclosure not to the public at large, but rather to the police or some other responsibleparty.88 Fourth, courts have stated that there "is no confidence as to the disclosure ofiniquity.'"89

What qualifies as iniquity is not certain. Lord Denning in Initial Services v.Putteril190 stated that the defense should "extend to crimes, frauds and misdeeds,both those actually committed as well as those in contemplation, provided always-and this is essential-that the disclosure is justified in the public interest." 9 1

However, the defense has also been given a less restrictive definition when an actualmisdeed has not occurred. 92 In Lion Laboratories, for example, even though theplaintiffs were not guilty of any misconduct, the court allowed the defense becausethe information was a matter of grave public concern. 93 Once the court has examined

80. See BR.AcH OF Co''DtENcE, supra note 52, at 4.54-4.72; F. GuRPY, supra note 50, at 325-59; B. RFm, supra

note 49, at 176-77.81. See F. GwuRY, supra note 50, at 325-52; BREAcH OF COWJFIDENCE, supra note 52, at 4.36-4.53.82. [19851 1 Q.B. 526, 536-39 (C.A.).83. Schering Chem. Ltd. v. Falkman Ltd. [1982] 1 Q.B. 1 (C.A.); British Steel Corp. v. Granada Tel. Ltd. [1981]

A.C. 1096; Woodward v. Hutchins [1977] 1 W.L.R. 760 (C.A.); Hubbard v. Vosper [1972] 2 Q.B. 84 (C.A.); Fraserv. Evans [1969] 1 Q.B. 349 (C.A.); Initial Servs. Ltd. v. Putterill [1968] 1 Q.B. 396 (C.A.).

84. Lion Lab. Ltd. v. Evans [1985] 1 Q.B. 526, 536 (C.A.).85. Id.86. Id. at 537 (quoting Lord Wilberforce in British Steel Corp. v. Granada Tel. Ltd. [1981] A.C. 1096, 1168).87. Id. See also Francome v. Mirror Group Newspapers Ltd. [1984] 1 W.L.R. 892, 898 (C.A.) ("[T]hey are

peculiarly vulnerable to the error of confusing the public interest with their own.") (per Donaldson, M.R.).88. Lion Lab. Ltd. v. Evans [ 1985] 1 Q.B. 526, 537 (C.A.). See also Francome v. Mirror Group Newspapers Ltd.

11984] 1 W.L.R. 892, 898 (C.A.).89. Gartside v. Outram [1856] 26 L.J. Ch. 113, 114; Lion Lab. Ltd. v. Evans [1985] 1 Q.B. 526, 537 (C.A.).90. [1968] 1 Q.B. 396 (C.A.).91. Id. at 405.92. See Lion Lab. Ltd. v. Evans [1985] 1 Q.B. 526, 537 (C.A.); F. GUtRY, supra note 50, at 340-41.93. The information in that case dealt with faulty breathalyzers by which some members of the public may have

been wrongly convicted for drunk driving.

1989]


the above factors, it weighs the competing interests based on the evidence and factsof the case.

The law of breach of confidence is fact-based, and the success of a claimdepends upon the relationship of the parties involved, the nature of the information,and the extent to which the information is already available to the public. While mostcases arise from disclosure of trade secrets, patents, or employment contracts, 94 anumber of cases have involved the press. 95 With the exception of Lord Denning'sdissent in Schering Chemicals Ltd. v. Falkman Ltd. ,96 nothing suggests that the pressis given any greater protection from a breach of confidence action than any otherdefendant. Moreover, despite Blackstone's commentary on prior restraint, 97 thecourts have not been reluctant to grant temporary injunctions restraining the pressfrom publishing confidential material. 98 Courts weigh the same factors in grantingany injunction: the adequacy of damages, the likelihood that one party will be greatlyharmed as a result of the grant or denial of the injunction, and each party's likelihoodof prevailing at trial. 99

B. The Contempt of Court Act 1981

The press, in addition to being subject to actions for breach of confidence, is alsosubject to the Contempt of Court Act 1981 (the Act). °0 The Act provides for strictliability if a publication creates a substantial risk that the course of justice will beseriously impeded or prejudiced. '0 ' In order for the strict liability rule to apply, theproceedings in question must be active. ' 0 2

Criminal proceedings are active at the time of an arrest without a warrant, theissuance of a warrant or a summons, or the service of an indictment, whichevercomes first.103 Other proceedings become active at the time arrangements are madefor the hearing or, if no such arrangements are made, from the time the trial begins. 104

Appellate proceedings are active when they are commenced by the appropriate

94. See generally F. GutRY, supra note 50; B. REm, supra note 49.95. See Lion Lab. Ltd. v. Evans [1985] 1 Q.B. 526 (C.A.); Francome v. Mirror Group Newspapers Ltd. [1984]

1 W.L.R. 892 (C.A.); Schering Chem. Ltd. v. Falkman Ltd. [1982] 1 Q.B. 1 (C.A.); Home Office v. Hannan [1981]I Q.B. 534 (Q.B.D.); British Steel Corp. v. Granada Tel. Ltd. [1981] A.C. 1096; Attorney-General v. Jonathan CapeLtd. [1976] 1 Q.B. 752; Fraser v. Evans [1969] 1 Q.B. 349 (C.A.); Argyll (Duchess of) v. Argyll (Duke of) [19671 Ch.302.

96. [1982] 1 Q.B. 1, 22 (C.A.) ("Freedom of the press is of fundamental importance in our society. It covers notonly the right of the press to impart information of general concern, but also the right of the public to receive it. It is notto be restricted on the ground of breach of confidence unless there is a 'pressing social need' for such restraint.").

97. "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previousrestraints upon publications, and not in freedom from censure for criminal matter when published." 4 W. BLAcsrors,COmsNTARiEs 151-52.

98. See Recent Developments, Freedom of the Press and Government Secrets: The Availability of Prior RestraintAgainst the Press in the United Kingdom, 28 HARv. Ir'L L.J. 131, 133 (1987) (authored by Paula Dalley) [hereinafterDalley].

99. Id. See also American Cyanamid v. Ethicon Ltd. [1975] 2 W.L.R. 316 (H.L.(E.)).100. [1981] Ch. 49.101. Id. § 2(2).102. Id. § 2(3).103. Id. sched. 1., 4-5.104. Id. 12.


procedures. 05 All proceedings become inactive when they are disposed of or arediscontinued. 106

There is, then, a three-part test for the strict liability rule to apply. Theproceedings must be active. If they are, then the Attorney General 07 must prove thatthere is a substantial risk that publication will affect the proceedings. This seems tobe determined by the nature of the publication, its breadth, and the place of trial. 0 8

Then the Attorney General must prove that the publication will seriously impede orprejudice the proceeding. This determination depends on the content of thepublication and its proximity to the date of trial. 09

A defendant has four possible defenses. First, a publisher who does not knowand has no reason to know that the proceedings are active cannot be convicted underthe rule.' 10 Second, a distributor who does not know or does not have reason tosuspect that the publication contains prejudicial information cannot be held liable.I"IThird, a publication made as part of a good faith discussion of public affairs or othermatters of public interest does not fall under the rule if the risk of prejudice isincidental." 2 Fourth, fair and accurate reports of public proceedings publishedcontemporaneously and in good faith are not subject to the rule. The latter, however,can be postponed if the court thinks that it is necessary to avoid the risk ofprejudice.

13

Despite the limits on strict liability, the Act contains a savings provision thatallows for common law defenses as well as for other kinds of actions for contempt. 14

Thus the press could be restrained from publishing information even if theproceedings were not active, if a court believed that the information published wouldimpede justice. If, for example, in a child abuse case, the court believed thatdisclosing the child's name would be harmful to her, the court could prohibit itsdisclosure even if the proceedings involved were not active.

The freedom of the press in England is limited by each of the means outlined,and nothing suggests that either the government or the courts are hesitant aboutimposing restraints. The government, as the Spycatcher cases illustrate, combinesthese methods quite effectively to delay publication of information it believes shouldremain secret.

105. Id. T 15.106. Id. 5, 12, 15-16.107. Id. § 7. Section 7 requires the consent of the Attorney General or a motion of the court for an action to be

brought under the rule.108. See Attorney-General v. News Group Newspapers Ltd. [1986] 3 W.L.R. 365, 375, 377 (C.A.).109. Id. at 377.110. Contempt of Court Act 1981, Ch. 49, § 3(1).111. Id. § 3(2).112. Id. § 5.113. Id.§4.114. Id. § 6.

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HI. THE ENGLISH CASES

A. The Breach of Confidence Actions

1. The Pre-Publication Cases

The British cases began on June 27, 1986, when Justice MacPherson granted anex parte injunction restraining The Guardian and Observer from disclosing anyinformation obtained by Wright and from publishing any information connected toSpycatcher.115 Justice Millett modified the injunction to restrain the papers: (1) frompublishing any information directly or indirectly obtained from Wright in his capacityas a member of the Service, and (2) from attributing any information concerning theService to Wright by name or otherwise. 116 The papers, however, were free to publishinformation already made public in works published by Chapman Pincher orbroadcast on programs by Granada television." 7 The papers could, in addition,publish information disclosed in open court in New South Wales. 118 The Court ofAppeal upheld the injunction in a modified form allowing for disclosure ofinformation discussed in open Parliament. 119

On appeal, the Attorney General relied on the affidavit filed by Sir RobertArmstrong 2t in the Australian proceeding and on the common law action for breachof confidence. The Attorney General argued that because Wright's disclosure was abreach of his duty of confidence, the information itself was tainted by that breach.Any publication of that information by the newspapers, given their knowledge of itstainted nature, was a continuing breach of Wright's obligation to the government.12 'The newspapers, in essence, were third parties who, by virtue of their awareness ofthe confidential nature of the information, were in the same position as Wright: they,like Wright, were the confidants who had been given information for a limited useand, therefore, could not make any unauthorized disclosure of it. 122

The Attorney General's primary argument was based on Sir Robert's affidavit.In the affidavit, Sir Robert pointed out the "exceptional scope" of the obligationaccepted by Wright and other Service members. 123 Wright had had access to highlyclassified information, information Sir Robert claimed was still highly sensitive.124

Sir Robert then outlined the dangers that would result, claiming that any disclosurewould endanger the work of the Service and, thereby, the national security interestsof the United Kingdom. '2 Sir Robert also stated that while the information itself may

115. Attorney-General v. Observer Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file).116. Id.117. See supra note 8. These works are among those that had earlier disclosed information similar to that disclosed

by Wright.118. Attorney-General v. Observer Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file).119. Id. (The decision was unanimous, with Mustill, L.J. and Nourse, L.J. concurring in the Master ofRolls opinion.)120. Id. Sir Robert is the Prime Minister's principal advisor on matters of security and intelligence.121. Id.122. Id. See also supra text accompanying notes 76-79.123. Attorney-General v. Observer Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file).124. Id.125. Id. Sir Robert delineated three areas of potential damage:

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not have been classified, and may seem innocuous, its disclosure could cause seriousharm to the Service. 126 It could take on added significance when read in tandem withother information, allowing unfriendly governments to verify their sources. 127

The press argued that the public interest in disclosure outweighed the securityinterest and asserted an additional public interest in exposing wrongdoing by theService. The Service, they argued, was subject to the same laws as any ordinarycitizen. The public, therefore, had a legitimate "interest in knowing of, and beingable to bring pressure to bear to restrain, any breach by it of the law.' 2 8 Thenewspapers also argued that because the information had already been made publicwithout any actions taken by the government, its confidentiality was destroyed. 129

Sir John Donaldson, Master of the Rolls, after acknowledging that damageswould be an inadequate remedy for either party, turned to the balancing testestablished in Lion Laboratories:130 "The conflict should be resolved in favour ofrestraint, unless the court is satisfied that there is a serious defence of public interestwhich may succeed at trial ... and that that interest outweighs the conflicting publicinterest in favour of preserving confidentiality.1 131 In weighing the competing publicinterests, he concluded that the balance tipped in favor of protecting the obligation ofconfidence and national security. 132 He rejected the papers' defense of iniquity,pointing out that they had not sought to communicate the Service's allegedwrongdoing to those in authority to investigate, but rather to the largest possibleaudience-the public. 133

The Master of the Rolls also rejected the defense of prior publication. The papershad relied on the decision of 0. Mustad & Son v. Dosen, 134 in which the court heldthat if a plaintiff were responsible for information becoming public knowledge, hecould not assert a claim of confidence.135 The Master of the Rolls distinguished thiscase by stating that the government had not authorized the previous publications andthus was not responsible for the disclosures. 136 Moreover, he pointed out that toaccept this claim would allow the papers to profit from their wrongdoing. 137

The Court of Appeal's decision at this stage of the litigation is not surprising.The Attorney General had an arguable claim of breach of confidence by a third party,

a) the intelligence and security services of friendly foreign countries with which the British Security Service isin liaison would be likely to lose confidence in its ability to protect classified information; b) the British SecurityService depends upon the confidence of other organizations and persons. That confidence would suffer seriousdamage should the Second Defendant [Wright] reveal information of the nature described above; c) there wouldbe risk that other persons who are or have been employed in the British Security Service who have had accessto similar information might seek to publish it. Id.126. Id.127. Id.128. Id.129. Id.130. [19851 1 Q.B. 526 (C.A.). See also supra text accompanying notes 81-93.131. Attorney-General v. Observer Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file).132. Id.133. Id.134. [19631 R.P.C. 41.135. Attorney-General v. Observer Ltd. (C.A. July 25, 1986) (LEXIS, Enggen library, Cases file).136. Id.137. Id.


a claim sufficient at least to put the court in the position of balancing the competinginterests involved. Once that occurred, the nature of the information became thecontrolling factor, and because the full contents of Spycatcher were not available orknown, the Attorney General had an arguable claim that the information could harmthe Service. Thus, the court's application of the balancing test was not unusual.

What is surprising, however, is the ease with which the court rejected thepapers' iniquity defense and its trust in the very authorities to whom Wright hadappealed prior to deciding to publish the book.'3 8 It may be that the court waspersuaded by Sir Robert's affidavit, especially because at this time the onlyinformation disclosed was the papers' allegations and information made publicpreviously. That all changed, however, once Spycatcher became available not onlyin England, but worldwide.

2. The Post-Publication Cases

The post-publication cases are really three phases of the same case, that is, TheGuardian and Observer's attempt to have the Millett injunction dismissed, and theAttorney General's attempt to keep it in force. Each decision of the courts, however,develops a different approach to the issues involved, and for this reason, the decisionswill be dealt with separately.

a. Chancery Division

In their claim for dismissal, the Observer and The Guardian contended that amaterial change in circumstances had occurred since the granting of the initialinjunction. These papers argued that the publication of Spycatcher in the UnitedStates and its availability in England, combined with other press disclosures,weakened the Attorney General's claim for breach of confidence. 139 The papersargued that for any claim of breach of confidence to succeed, the information mustremain confidential; once it was in the public domain, it no longer had the "qualityof confidence." 140 Thus, the Attorney General no longer had an arguable case attrial, and the injunction should be lifted.'14

The Attorney General claimed that no material change in circumstances hadoccurred. He pointed out that the injunction was still temporary; the appeal on it hadnot yet been decided by the House of Lords, nor had the Australian action beendetermined; and, he stated, the concerns expressed in Sir Robert's affidavit remainedthe same. 142 He also argued that the availability of the information to the public wasnot determinative. He relied on the distinction between information imparted inconfidence before publication and after publication. The Attorney General claimed

138. See Dalley, supra note 98, at 137 (pointing out the court's faith in the "ability and inclination of thegovernment to correct its own wrongdoing without demands from the press and public").

139. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1261 (Ch. D.).

140. Id. The reference is to Saltman Eng'g Co. v. Campbell Eng'g Co. [1963] 3 All E.R. 413,415. See also supratext accompanying notes 63-68.

141. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1261 (Ch. D.).

142. Id. at 1257.

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that if the information were not confidential prior to its communication, then no

injunction could issue. If it were confidential when disclosed, then a later publication

would not destroy the obligation of confidence. 143 That, he claimed, was the case

here: the information acquired by Wright was confidential, and its later disclosure did

not change Wright's duty or the confidential nature of the information. 14 4

Anyone who obtained the information with notice of the fact that it was

communicated in confidence came under the same obligation as Wright, whether or

not it was still confidential at the time he obtained it. 145 The papers, then, were still

under the same obligation of confidence as they were prior to publication of

Spycatcher.In the first part of his decision, the Vice-Chancellor accepted the newspapers'

argument that there had been a material change in circumstances. 146 He pointed out

that the publication of the book undermined the basis of the Millett injunction: "the

injunction no longer preserves a position in which it can be said that the British

Security Service is leak-proof; the various matters which Sir Robert Armstrong

deposed to in his affidavit are now known." 147 The Vice-Chancellor's task, then, was

to determine if the Attorney General still had an arguable case at trial. 148

In making that decision, the Vice-Chancellor first rejected the papers' argument

as too simplistic. He then pointed out the weakness of the Attorney General's version

of third party liability for breach of confidence. The Vice-Chancellor distinguished

between parties who participate in the breach and those who do not. 149 Thus, between

a confider and confidant, the obligation of confidence remained, regardless of whether

the information was in the public domain. A publisher who participated in the breach

of an employee's contract by, for example, "poaching" information was bound by

the obligation attached to the confidant.150 If, however, a third party who had not

participated in the breach obtained the same information, and at the time he received

it the information was public knowledge, then he would not be bound by the obligation

of confidence. Once the information was public, the third party had a right to it. 1 1

The Vice-Chancellor placed Wright and his publisher, Heinemann, in the first

category and the Observer and The Guardian in the second. The newspapers could

purchase a copy of Spycatcher, disclose its contents, and not be in breach of

confidence because they had not assisted Wright in his breach of duty. 152 The

143. Id. at 1262. The Attorney General relied on the decisions in Speed Seal Prod. Ltd. v. Paddington [1985] 1

W.L.R. 1327 (C.A.) (when defendant who owed a duty of confidence publishes the information, an injunction will still

lie even if information is available to the public) and Schering Chem. Ltd. v. Falkman Ltd. [ 1982] 1 Q.B. 1 (C.A.) (when

third party participates in breach of confidence, an obligation to keep the confidence still exists even if the information

is available from other sources).144. Attorney-General v. Guardian Newspapers Ltd. [19871 1 W.L.R. 1248, 1262 (Ch. D.).

145. Id.146. Id. at 1259.147. Id. at 1261.148. Id.149. Id. at 1263-65.150. Id. at 1264.151. Id.152. Id. at 1265.

19891


information, in their case, was public: it no longer belonged to the governmentbecause it was in the public domain. 153

The Vice-Chancellor also pointed out that the Attorney General's theoryexpanded the law of confidence and could lead to absurd results.1 54 Under theAttorney General's theory, if a person purchased a copy of Spycatcher and read it,she could not, for example, disclose the contents to her husband without breaking thelaw. 155 However, because the Attorney General raised an arguable point of law, theVice-Chancellor did not decide the case based on third party liability, 156 but decidedhe was bound to balance the competing interests. 157

In favor of granting an injunction, the Vice-Chancellor pointed to its temporarynature and to the fact that all papers would be bound by it. 158 He also noted thatallowing publication would be admitting that the courts could not protect state secretsand could lead others to emulate Wright. 159 The balance, however, fell on the side ofthe papers. The Vice-Chancellor focused on three points. First, the publication ofSpycatcher defeated the purpose of the injunction. Any harm that could occur,already had. Second, given that the information was available, an injunction wouldact as an unnecessary restraint on the press. Third, he held that the public interestrequired that the courts be respected, and that to uphold an injunction whose purposewas defeated would make the law "an ass." 160

A sense of reluctance runs through the Vice-Chancellor's opinion. 161 On the onehand, he expressed a concern over the danger of future publications like Wright's, buton the other, he realized the futility of preventing publications given the contempo-rary world of electronics and limited jurisdictions. 162 His opinion, however, alsoshowed concern for the freedom of the press. He acknowledged that publication bythe press would cause greater damage than that done by an individual, but stated thatto restrain the press on this basis negated freedom of the press: "If the press isprecluded from saying things that other people are not precluded from, that seems tobe not a freedom of the press but an additional fetter on it." 163

b. The Court of Appeal

On appeal, the Attorney General focused on three points. He argued (1) that theVice-Chancellor's decision was inconsistent in that, having held the government had

an arguable case at trial, he failed to protect it; (2) that the effect of discharging the

153. Id.154. Id. at 1266.155. Id.156. Id.157. Id. See also American Cyanamid Co. v. Ethicon Ltd. 11975] 2 W.L.R. 316, 321-22 (H.L.(E.)).158. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1266 (Ch. D.). See infra text

accompanying notes 248-56.159. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1268 (Ch. D.).160. Id. at 1268-69.161. Id. at 1269. He compares himself to the Dutch boy asked to place his finger in the hole of the dike when the

dam has already broken.162. Id.163. Id.

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injunction would make any later remedy an empty gesture; and (3) that theVice-Chancellor failed to analyze what could be done by way of effective relief at thatstage of the litigation. 164

The Court of Appeal accepted the Attorney General's argument to a limitedextent. First, the court distinguished between information that was public knowledgeand information in the public domain. The contents of Spycatcher were publicknowledge, but because the book was tainted by Wright's breach of duty, it was notin the public domain: the information still belonged to the government. 165 Allpublications that came from it were also tainted. Thus, the court held that thegovernment's right to a temporary injunction had not changed since 1986.166

The court, however, accepted the lower court's view that equity does not act invain and, therefore, considered whether maintaining the injunction would be anempty gesture. Relying once again on the affidavit of Sir Robert Armstrong, the courtdecided that to maintain the full force of the injunction would be futile because muchof the harm he outlined had already occurred. 167 But a modified injunction could limitsome of the damage if Wright and others who were tempted to follow him wereprevented from profiting from their disclosures. 168 Because the United Kingdom wasthe "best market" for Spycatcher, the court modified the injunction to prohibitpublication of any direct excerpt from the book or any statement from Wright. 169 Inorder to protect the freedom of the press and avoid public inconvenience andimpairment of discussion, the court allowed the papers to publish Wright's allega-tions in very general terms.170 The court also modified the injunction to insure thatthe press could not publish excerpts if the government lost its case in Australia. 17'

What is interesting about this decision is that it provides the government withanother possible vehicle for protecting its secrets. The court, in effect, accepted thefact that the contents of Spycatcher were public knowledge, and yet it maintained,albeit in a modified form, an injunction not on the basis of breach of confidence, buton a deterrence theory. The injunction's purpose was not to protect against furtherdisclosures, but to prevent Wright from profiting from them. While this would not beunusual in terms of the law of confidence as applied to the confidant, it is unusualwhen applied to third parties who have neither aided nor participated in the breach.It may be that the decision was directed to the Sunday Times and its attempt to escapedetection by the government, but if so, the opinions do not make this clear. Under thereasoning of this case, the government conceivably could prevent information,regardless of how widely disseminated, from being published because it could leadothers to do the same or allow the original confidant to profit. It does not appear tomatter whether those interested in disclosing the information participated in the

164. Id. at 1274.165. Id. at 1275-76.166. Id.167. Id. at 1276.168. Id. at 1277.169. Id.170. Id.171. Id. at 1277-78.

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original breach. If that is the case, and this opinion suggests that it is, the actionwould no longer be one for breach of confidence but one for deterrence.

c. The House of Lords

The House of Lords, by a three-to-two decision, overruled the lower courtdecisions and reinstated the Millett injunction with an added proviso prohibiting thepress from publishing disclosures made in open court in Australia. 172 All partiesagreed that the modified injunction was unworkable 73 and that the issue had to beresolved by either dismissing or maintaining the injunction.

In his opinion, Lord Brandon, initially pointed out that the Attorney General wasnot enforcing a private right that would normally be overridden by the public interestin the freedom of expression, but rather, that the Attorney General was acting toprotect the public interest of the Security Service. 174 The press's interest inpublication was subordinate to that of the Service. 175 Lord Brandon also noted thatthe injunction was temporary 176 and that the government had a strong case prior toSpycatcher's publication. 177

The key issue, then, was whether the strength of that claim had been sufficientlydiminished by subsequent events to require the injunction's dismissal. 78 In decidingthat the claim was not weakened, Lord Brandon focused on two points. First, herejected the notion that the contents of the book were public knowledge, stating thatif they had been, the press would not have been as determined to publish as theywere. 179 He then turned to the question of harm to the Service, and while he agreedthat many of the harms outlined by Sir Robert had already occurred,180 the potentialdamage to the Service had not been exhausted. There still remained the risk of futuredisclosures,' 8' and that risk, he stated, was a real one, leaving the government withan arguable claim at trial. 182

Lord Brandon concluded that the best way to resolve the issue was to have a fulltrial with both sides presenting evidence.183 If the injunction were dismissed at thisstage, the government's case would be destroyed by publication, 184 but if it werecontinued, the only harm to the press was delay, an effect that was not equivalent tothe complete denial of a trial. 85 The choice, as he saw it, lay between one courseresulting in irrevocable damage, and the other resulting only in a temporary delay.

172. Id. at 1282.173. See, e.g., id. at 1313. Lord Oliver pointed out that it would offer no protection to the Attorney General and

would place the press in the awkward position of trying to interpret "general terms."174. Id. at 1287-88.175. Id.176. Id. at 1289.177. Id.178. Id.179. Id.180. Id. at 1290. See also supra note 125.181. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1290 (H.L.(E.)).182. Id. at 1290-91.183. Id. at 1291.184. Id.185. Id. at 1292.

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The latter, he held, was preferable to the former, especially given the importance ofthe public issue involved.18 6

Lord Templeman approached the case from the perspective of Article 10 of the

European Convention on Human Rights (Article 10).187 In his analysis he acceptedthat Wright's publication of Spycatcher was a treacherous breach of duty. He alsoaccepted the Attorney General's argument that the obligation of confidence appliedto the press and anyone else receiving information from Wright with knowledge of itsconfidential nature.1 88 The press's actions, therefore, were not protected by Article10 because while that provision guaranteed freedom of expression, it allowedgovernments to interfere with that right in the interest of national security.1 89 Theissue, then, was whether the injunction was necessary to preserve nationalsecurity. 190

Lord Templeman decided that a democracy could prevent members of a securityservice from disclosing secrets and could prevent others from repeating them. 191 Heagreed with the newspapers that the members of the Service were not above the law,but held that those who were aware of violations could freely report them to theappropriate authorities. 192 The press, moreover, was free to investigate allegations ofwrongdoing and report their results as long as they did not publish informationwrongly disclosed by Wright. 193

Lord Templeman then turned his focus to Article 10, relying on three reasonswhy the injunction was justified. First, he pointed out that because members of theService are sworn to secrecy, they must rely on the Attorney General to protect theirinterests by preventing mass circulation of accusations and revelations of theService's activities.1 94 If the press were allowed to publish Wright's allegations, theService and its members would be subject to harassment and would be unable todefend themselves. This in turn, he stated, would "deal a blow to the morale" of theService and could lead to a loss of public confidence in the Service. 95 LordTempleman rejected the papers' counterargument that the law would look ridiculousif it imposed restraints on the press when others could purchase copies of the book. 196

186. Id.187. Id. at 1296. That Article in pertinent part states:1. Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and toreceive and impart information and ideas without interference by public authority .... 2. The exercise of thesefreedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions...as are prescribed by law and are necessary in a democratic society, in the interests of national security. ... forpreventing the disclosure of information received in confidence, or for maintaining the authority and impartialityof the judiciary.

CO,-ErrlON FOR THE PROTECnON OF HurtAN RIoTrrs AND FtNmArer. FPxasoOts (Rome, 4 Nov. 1950) ART. 10, quotedin Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1296 (H.L.(E.)).

188. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1294-95 (H.L.(E.)).189. Id. at 1297.190. Id.191. Id.192. Id.193. Id. at 1297-98.194. Id. at 1298.195. Id.196. Id. This is a reference to the Vice-Chancellor's opinion. See supra text accompanying note 160.

1989]


Second, he stated that if the injunction were dismissed, others could follow Wright'sexample by first publishing their memoirs abroad. 197 Moreover, if the court held theinjunction served no purpose, Wright could continue to publish additional allega-tions, and nothing would prevent the British press from publishing them as well. 198

Finally, he stated that to allow publication would be to surrender to the press "anuntrammelled, arbitrary and irresponsible power to evade an order of the court," anorder designed to protect the safety of the realm.' 99

Lord Ackner provided an overview of the issues already raised200 and thenfocused on the fact that it would be a denial of justice to dismiss the injunction beforethe initial action was heard. Stressing the potential harms to the Service and theimportance of the public interest in deterring others, 20 1 he argued that if the AttorneyGeneral were denied a trial, Wright could publish his work in England, and moreimportantly, members of the Service and their families would not be protected fromother disclosures.202 The press's publication, then, would not only affect the moraleof the Service, but it would also cause a further loss of confidence in the efficiencyof the Service. That interest justified the maintenance of the injunction until trial. 203

Lord Ackner also emphasized that a dismissal would undermine Britishjustice.20 4 He concluded by pointing out that the added proviso to prevent disclosuresmade in open court in Australia was necessary to keep the press from publishingexcerpts of Wright's book.20 5 It would have been naive and absurd, he stated, for theLords not to have anticipated the press's use of this loophole to frustrate the court'sorder.206

Lord Oliver, in his dissent, focused on the inappropriateness and ineffectivenessof continuing the injunction given the events that had occurred. He stated that it hadto be remembered that the parties involved were the Observer and The Guardian,newspapers that had done and were proposing to do nothing more than what anypaper would do: collect and disseminate the news to the public.20 7 The issue then waswhether it made sense to restrain those papers from publishing information freelyobtainable by the public and the press in all countries except England. 20 8 Heconcluded that it did not.

First, Lord Oliver argued that it was a misuse of the injunctive remedy to restrainthe papers in order to deter others, especially when they had not been party to thebreach.2 9 Second, it was inefficient, given that the case itself demonstrated that an

197. Id. at 1299.198. Id.199. Id.200. See supra text accompanying notes 175-84. Lord Ackner also accepted Lord Templeman's opinion on Article

10 and held that an accounting of profits would be useless given the jurisdictional problems.201. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1305 (H.L.(E.)).202. Id. at 1305-06.203. Id. at 1306.204. See supra text accompanying note 1.205. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1308-09 (H.L.(E.)).206. Id. at 1309.207. Id. at 1315.208. Id. at 1316.209. Id. at 1317-18.

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injunction could not prevent publication. 210 Third, the harm to the Service hadalready occurred, and other measures, such as an accounting of profits, could havebeen used to protect its morale. 21 ' Moreover, the widespread availability of the bookillustrated that the Service's morale would continue to be harmed. Restraint wouldnot stop it. He argued that the contention of continuing harm to the Service wouldhave been valid if the information had indeed been cut off, but it lost all force and wasof little value given the level of publicity. 21 2

Next Lord Oliver considered the Attorney General's claim of breach ofconfidence against third parties. 2 13 While he accepted that the Attorney General mayhave had an arguable case, he found it difficult to believe that it would be successfulat trial. 214 He did not believe that the papers would be permanently enjoined fromdisclosing information that had been and still was being disclosed by members of thepublic. Moreover, given the papers' iniquity defense, he argued that it wasimpossible to try the case without disclosing the allegations. Would the court, heasked, have to try the case in the privacy of its chambers to prevent disclosing notstate secrets, but information the public already had?21 5 Given all of the above, thebalance, he held, must fall to the press. Lord Oliver acknowledged that the freedomof the press was limited, but if that privilege which is at the "root of society" wereto be overborne, it "must be overborne to some purpose. "216

Lord Bridge, also dissenting, considered whether there was a remaining nationalsecurity interest the Millett injunction could protect and, if so, whether it was ofsufficient weight to justify the "massive encroachment" on the freedom of thepress. 217 In deciding that no security interest remained, he pointed out that the state'sclaim had been defeated by publication-the deterrence theory carried little weightonce it was clear that the information could not be contained-and if the AttorneyGeneral were concerned about disclosure of future allegations, he could seekinjunctions when such disclosures occurred. 218 Given the weakness of the claimagainst the papers, Lord Bridge argued that the interference with the freedom of thepress was not justified. In pointing out that the modified injunction may have beenaimed at the Sunday Times, he stated that if there were a legal means to restrain thatpaper, he would allow it. But to prevent the press from discussing matters of interestto the public was not acceptable:

Freedom of speech is always the first casualty under a totalitarian regime. Such a regimecannot afford to allow the free circulation of information and ideas among its citizens....The present attempt to insulate the public in this country from information which is freelyavailable elsewhere is a significant step down that very dangerous road. The maintenance of

210. Id. at 1317.211. Id.212. Id.213. Id. at 1318. See supra text accompanying notes 143-45.214. Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1319-20 (H.L.(E.)).215. Id. at 1320.216. Id. at 1320-21.217. Id. at 1285.218. Id. at 1285-86.

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the ban, as more and more copies of the book Spycatcher enter this country and circulatehere, will seem more and more ridiculous.219

The House of Lords' decision illustrates the relatively low value placed on thefreedom of the press in England and represents a potential expansion of the law ofbreach of confidence. The majority opinions are based on the assumption that furtherpublication by the press would result in harm to the Service. That harm, they claimed,was not in the disclosure of classified secrets, but rather in subjecting its members toharassment when others emulate Wright in the future. The majority's reasoningassumes that others will be eager to follow Wright's example, that the proceduresestablished by the Service to prevent leaks will fail again, and that actions foraccounting of profits are useless. Thus, they assume that the only means to deterothers is to restrain the press in this instance as a lesson for the future.

The weakness in the Lords' reasoning is apparent from the facts of theSpycatcher cases themselves. The potential harms the Lords mentioned had alreadyoccurred. Wright's book and all of his allegations were public knowledge regardlessof how the term is defined. Only the press was prevented from discussing the book.Moreover, given this decision, the only restraint on future Wrights is a restraint on thepress. Such people will still be free to publish their memoirs abroad, the public willstill be free to purchase them, and the writers will still profit from their disclosures.Only the press suffers. The deterrent effect, then, is minimal, but the Lords, byattempting to prevent something that cannot be prevented by an injunction, have inthe process expanded the law of confidence.

While the Lords decided only that the Attorney General had an arguable claimat trial, the majority opinions seem to suggest that a third party can be held liable forbreach of confidence even though he did not participate in the original breach. Thatliability, it would appear, continues regardless of how widespread the disclosure hasbeen. In cases up to this point, as the Vice-Chancellor outlined in his decision, courtsimposed liability only when the third party aided the breach and stood to profit byit.22° If the Attorney General's version of the law is accurate, potential claims existedagainst the general public for reading Spycatcher and discussing it. Obviously suchclaims would not have been brought, but the expansion of the law gives thegovernment an additional weapon to use against the press. The majority opinions alsoseem to suggest that if the injunction had been lifted, Wright would have been freeto publish in England because an injunction would have served no purpose. 221 Hereit appears the Lords misinterpret the law. Up to this time, courts had held that unlessthe plaintiff makes the information public, the confidant can be enjoined regardlessof whether or not the information is public knowledge. 222

Finally, the majority opinions suggests that an injunction for breach ofconfidence can be brought on the basis of its deterrent effect even if the information

219. Id. at 1286.220. See supra text accompanying notes 149-55.221. Attorney-General v. Guardian Newspapers Ltd. [19871 1 W.L.R. 1248, 1289, 1305 (H.L.(E.)).222. See generally F. GuRRY, supra note 50.

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involved has previously been disclosed. While the Lords distinguished betweeninformation that is public knowledge and information that is in the public domain,2 23

in this case that distinction is of little use, given the scope of disclosure and thegovernment's concession that bans on importation of the book would have beenineffective. It is not clear whether in future cases the government could restrain thepress from publishing an article, for example, about a leak at a chemical weaponsplant, not because the information was currently secret, but because it might leadothers to divulge information that is secret. The Lords' reasoning suggests that suchan action would be valid as long as the information had at one time been secret, andits original disclosure was a violation of a duty of confidence.

The House of Lords' decision, then, has the potential of providing thegovernment with even wider means to restrain the press. Moreover, the governmentneeds to enjoin only one paper from publishing material. All other papers, andperhaps anyone else who seeks to disclose the same information, will be preventedfrom doing so because their action will be in contempt of court.

B. The Contempt of Court Proceedings

As noted earlier, after Justice Powell delivered his opinion in Australia, theIndependent and two other London papers published major summaries of Wright'sallegations, including direct quotations from Spycatcher.224 The Attorney Generalbrought proceedings against the papers for contempt of court. The courts, however,decided only the preliminary question of whether a publication made with theknowledge of an outstanding injunction against another party constituted criminalcontempt because it interfered with the administration of justice. 225

The Attorney General argued that it did. He distinguished between civilcontempt, which consists of a breach by a party of an order of the court, and criminalcontempt, which consists of conduct that frustrates or impedes the due administrationof justice. 226 He argued that the papers had not committed civil contempt becausethey were not bound by the Millett injunction, but rather that they had committedcriminal contempt by publishing material the Court of Appeal had held was contraryto public interest. 227 He claimed that if others published excerpts from Wright'smemoirs, they would destroy the very subject matter of the action against theObserver and The Guardian: the confidentiality of the information. 22 8 Such publi-cation would deprive the government of a right to a hearing on the main action, thepurpose of which was to obtain a permanent injunction to protect the secrecy of theService. 229 Thus the papers' action interfered with the administration of justice.

The newspapers argued that they could not be bound by an injunction to which

223. See Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1289 (H.L.(E.)).224. See supra text accompanying notes 25-26.225. Attorney-General v. Newspapers Publishing Plc. [1987] 3 W.L.R. 942, 949 (Ch. D.).226. Id.227. Id.228. Id.229. Id.

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they were not a party. 230 To hold third parties bound to an order, they argued, wouldbe contrary to the principle of English law that courts decide only issues between theparties before them and make orders that bind only those parties. 231 Further, theyclaimed that to hold them in contempt would violate natural justice: they would beheld guilty of a crime on the basis of an order not directed to them, made in ignoranceof the facts applicable to them, and thus, they would be deprived of their opportunityto be heard.232 Moreover, the newspapers pointed out that if the Millett injunctionwere dismissed, their status would be uncertain. 233 To hold them in contempt,therefore, would be an expansion of the criminal law, a matter for Parliament, not thecourts.

2 3 4

1. The Vice-Chancellor's Decision

The Vice-Chancellor, after reviewing the English authorities, 235 held that a thirdparty had never before been held in contempt of court for breach of an order madeagainst another, unless he had been privy to or a party to the doing of an act thatconstituted a breach of the terms of the order. 236 While the Vice-Chancellor noted thatthere were Canadian and Irish authorities to the contrary, 237 he did not find themcompelling. 238 An injunction under English law, he stated, could bind only a party tothe proceedings, his agent, or his servant, but not a third party who did not aid in itsbreach.239 Thus, the newspapers could not be held in contempt because they had notaided either the Observer or The Guardian in breaching the Millett injunction as nobreach of that order had occurred. 240

While the Vice-Chancellor recognized that the underlying principle for holdinga third party liable was that a court would not allow its orders to be knowingly floutedor frustrated, he concluded that that principle could not be extended to those whowere not parties to the original action.24' To do so, he stated, would in effect changethe jurisdiction of the courts from acting in personam to acting in rem. A court'sorders would become enforceable against all who had notice rather than against theparties involved. A person who was not a party to an action would, as a result, be

230. Id.231. Id.232. Id.233. Id. at 950.234. Id. at 949.235. See United Kingdom Nirex Ltd. v. Barton, The Times, 14 Oct. 1986; Z Ltd. v. A-Z [ 1982] Q.B. 558; Cretanor

Maritime Co. v. Irish Marine Management Ltd. [1978] 1 All E.R. 164; Marengo v. Daily Sketch & Sunday Graphic Ltd.[1948] 1 All E.R. 406; Seaward v. Patterson [1897] 1 Ch. 545; Wellesley (Lord) v. Earl of Mornington (No. 2) [1848]11 Beav. 180; Wellesley (Lord) v. Earl of Mornington (No. 1) [1848] 11 Beav. 181, as cited in Attorney-General v.Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 951-95 (Ch. D.).

236. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 950-54 (Ch. D.).237. See Catkey Constr. Ltd. v. Moran [1969] 8 D.L.R.3d 413; Tilco Plastics Ltd. v. Skurjat [1966] 57 D.L.R.2d

596.; Bassel's Lunch Ltd. v. Kick (No. 2) [1937] 1 D.L.R. 235; and Bassel's Lunch v. Kick (No. 1) [1936] O.R. 445,for the Canadian authorities, and Smith-Barry v. Dawson [1891] 27 L.R. Ir. 558, for the Irish, as cited inAttorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 953 (Ch. D.).

238. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 953-54 (Ch. D.).239. Id. at 954.240. Id.

241. Id. at 955-56.


deprived of all procedural safeguards connected to contempt proceedings and wouldbe denied his opportunity to present his case to the court involved. 242

The Vice-Chancellor noted that the facts of the case presented a compellingjustification for finding a legal basis to sanction the papers, but he held that thepractical consequences in other cases could not justify such an expansion of the law.He illustrated his point with several examples. Suppose that an employer obtained aninjunction against an employee for disclosing trade secrets. If the law of contemptwere extended as the Attorney General argued it should be, another employee, notbound by the injunction, could be held in contempt if she disclosed the same secrets.The employer, however, might not have had a basis for enjoining her as she mightnot have been bound by a duty of confidence. Yet the employee could still berestrained by the injunction even though the employer had no action against her.243

The Attorney General argued that a distinction should be made between ordersthat are personal to the parties involved and those that are not. Thus in a maritaldispute, if B, the husband, were enjoined from assaulting A, the wife, C, a thirdparty, would not be in contempt if she assaulted A. The order would be personal toA and B, and C would not be guilty of contempt. 244 The Vice-Chancellor rejected thisargument, pointing out that the distinction between "plainly personal" orders andothers was too uncertain. This uncertainty, he stated, was incompatible withimposing criminal sanctions on parties without the current procedural safeguards. 245

He concluded by noting that sanctions should be available to the government in casesof national security, but if those sanctions were not found in the Official SecretsActs, 24 6 then it was for Parliament, not the courts, to devise them. 247

2. The Court of Appeal's Decision

The Court of Appeal rejected the lower court's interpretation of the law. Thecourt held that publication of the material covered by the Millett injunction wouldconstitute contempt of court not because the papers breached the original injunction,but rather because publication would destroy the subject matter of the action betweenthe Attorney General and The Guardian and Observer. The papers, however, werenot held in contempt because they had not had an opportunity to put forward theirdefenses, nor had the required mens rea been established. 248

In its unanimous decision, the court distinguished between actions by thirdparties who aid in a breach of an injunction and actions by third parties who destroy

242. Id. at 957.243. Id. at 956.244. Id. at 957.245. Id.246. 1911, 1 & 2 Geo. 5, ch. 28; 10 & 11 Geo. 5, ch. 75; 2 & 3 Geo. 6, ch. 121. Section 2 of the Official Secrets

Act provides for criminal liability for any unauthorized disclosures of official secrets. While the scope of the Act is quitebroad with respect to whom and what is covered (there are 2324 separate offenses), the number of prosecutions under itis limited, primarily because other formal and informal sanctions exist. See generally REPORT OF THE COMM. ON SEcnoN2 OF THE OmnciAL SEcRETS Acr 1911, Csuo. 5104; P. O'Htoms, CE'sosum iN BRniAN (1972); H. STmEEr, FREEDOM, THEINDIVIDUAL AND THE LAw (5th ed. 1982); D. WVxutA~is, NOT IN THE PuBuc ImEREsT (1965); Dalley, supra note 98.

247. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 958 (C.A.).248. Id. at 960.

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the subject matter of a suit and thereby interfere with the administration of justice. 249

With respect to the former, the court agreed that the Vice-Chancellor's interpretationof the law was correct. However, the issue in this case, the court stated, was whetherpublication of material restrained by an injunction could constitute contempt becausepublication would destroy the subject matter of the suit and deprive the originalparties of their right to a trial.2-0

Sir John Donaldson resolved the issue by pointing to the inherently perishablenature of confidential material:

Confidential information is like an ice cube. Give it to the party who undertakes to keep itin his refrigerator and you still have an ice cube by the time the matter comes to trial....Give it to the party who has no refrigerator or will not agree to keep it in one, and by thetime of the trial you just have a pool of water which neither party wants. It is the inherentlyperishable nature of confidential information which gives rise to unique problems.25l

Because of the nature of the subject matter of the suit between the government andthe other papers, republication of the Wright material by the Independent and otherpapers would render it "a pool of water," useless to those in the first action.25 2

The newspapers, then, had rendered the Attorney General's case less effectiveand thereby interfered with the administration of justice. While the court held that thenewspapers had committed the actus tea, the criminal act, the court noted that thenecessary mens rea, the criminal intent, had not been established.253 Because theproceedings between the Attorney General and the Observer and The Guardian werenot active within the meaning of the Contempt of Court Act,254 the strict liability ruledid not apply, and thus the court had to determine the requisite intent under thesavings provision of the Act.255 While the Attorney General argued that a reckless-ness standard should be used, the court held that specific intent was necessary as itcomported with the statutory purpose of shifting the balance in favor of freespeech.

5 6

It is important to note that the court did not decide the papers were in contempt.That decision has yet to be made as the court decided only the preliminary issue. Inaddition, the court's decision was delivered the day after Spycatcher was publishedand after the serialization by the Sunday Times had begun. The timing of the decisionand its holding, therefore, effectively cut off all future press disclosures of the book.Any other paper publishing disclosures would have been on clear notice that it was

249. Id. at 969-72, 979-82, 985-88.250. Id.251. Id. at 962.252. Id. at 968. Lloyd, L.J., extended the reasoning to any destruction of the subject matter of a suit. Thus, if the

subject matter were a race horse and an injunction existed to preserve the horse, a third party who shot the horse withknowledge of the injunction would be guilty of contempt. Id. at 981.

253. Id. at 976-77, 983-85.254. See supra text accompanying notes 100-06.255. Attorney-General v. Newspapers Publishing Plc. [1987] 3 W.L.R. 942, 975-77, 983-84 (C.A.); see also

supra text accompanying note 114.256. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 985 (C.A.). See generally RPoR OF

THE LAw Cot im. On CoTrrEMPr OF COURT, 1974, CMND. 5794.

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interfering with justice and, thus, would be presumed to have the requisite intent forbeing held in contempt.2 7

The ramification of the Court of Appeal's decision is quite broad, especiallywhen combined with that of the House of Lords. The latter seems to establish that athird party can be held liable in civil court for breach of confidence on the basis ofdeterrence, while the former indicates that the same third party can also be criminallyliable. In both cases, the third party need not be involved with the original breach ofconfidence nor be a party to the injunction.

The government, therefore, can restrain the press from publishing information itbelieves should remain secret without ever having to prove that a paper breached itsduty to the state. To get a temporary injunction, all the government must show is thatit has an arguable case at trial. Once it makes that showing, further publication willbe cut off by contempt of court proceedings regardless of how widespread anyprevious disclosure has been.

If the various courts' reasoning is followed, that is, if disclosure of Wright'smaterial was both a breach of confidence and a criminal act, then technically eachperson who read Spycatcher and discussed it with others violated the law. In theory,then, a librarian who provided a member of Parliament with a copy of the book notonly could breach his duty of confidence, but would interfere with the administrationof justice.

In fact, because the scope of these decisions was so broad, the DerbyshireCouncil sought clarification from the courts concerning the potential liability of itslibrary. 258 The Council wanted to clarify, first, whether it would be acting incontempt if it made Spycatcher available to the public, and second, whether it wasunder an obligation to examine the newspapers it made available to determine if theyhad forbidden material32 9 The court held that while the scope of that library'sdistribution of the book might be limited, the House of Lords' decision required itsprohibition. 26° Because other libraries would and could follow the Derbyshire libraryif the court allowed distribution, the court held it was bound to limit distribution andminimize any damage to the Attorney General's claim before trial. The courtconcluded that if the library lent copies of Spycatcher, it would have committed theactus rea necessary for contempt of court.26' The court, however, did not require thelibrary to screen its periodicals to see if they contained Wright's material.2 62

IV. THE HONG KONG DECISIONS

The Hong Kong cases arose when the South China Morning Post, which hadpurchased the serialization rights of Spycatcher, published a 4000-word excerpt of the

257. Attorney-General v. Newspapers Publishing Pic. [1987] 3 W.L.R. 942, 985 (C.A.) (per Lloyd, L.J.: "Themore obvious the interference with the course of justice, the more readily will the requisite intent be inferred.").

258. See Attorney-General v. Observer Ltd. [1988] 1 All E.R. 385, 387 (Ch. D.).259. Id.260. Id. at 397.261. Id. at 398.262. Id. at 399.

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book in an article similar to that published by the Sunday Times.2 63 The AttorneyGeneral sought and obtained an ex parte injunction to restrain further publication.26 4

That injunction was similar to the one upheld by the House of Lords except that itallowed publication of information obtained in open court in Australia. 26 5 After thenewspapers applied for its discharge, Justice Barnett dismissed the injunction.266 TheAttorney General appealed, and the Court of Appeal reinstated it in the same form.267

The arguments raised by the Attorney General both at trial and on appeal wereessentially the same as those made in England. He argued that the paper was undera fiduciary obligation of confidence and the breach of that duty resulted not only ina loss of confidence in the Service by friendly nations, but also in a risk that otherswould emulate Wright.2 68 Once again, the Attorney General relied on Sir RobertArmstrong's affidavit. Given that the British government had an arguable claim attrial, the Attorney General argued that the injunction should remain in effect until atrial on the merits. 269

The defendants, while accepting that the Attorney General had an arguableclaim, argued that his claim did not outweigh the public interest in the freedom of thepress. 270 They argued that the deterrent effect on Wright and others did not apply asHong Kong was not the "best market" for profit. 271 They also claimed that theconcern over harassment of Service members did not apply to Hong Kong, nor didthe arguments concerning interference with justice. 272 Thus, their case was distin-guishable from that of the Observer and The Guardian, and, therefore, the reasoningof the House of Lords' decision had little or no application to them.273

After canvassing the opinions of the House of Lords, Justice Barnett concludedthat he was not bound by their approach with respect to Article 10 of the Conventionfor the Protection of Human Rights, 274 but rather by the balancing approach outlinedin Lion Laboratories275 and American Cyanamid v. Ethicon Ltd.276 That is, he had tobalance the competing interests involved.

In balancing those interests, Justice Barnett agreed with the defendants that theinterest in the freedom of the press outweighed the Attorney General's interests.

263. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at CNB/4. It isinteresting to note that both papers are controlled by Rupert Murdoch, who has in the past been the subject of commentsby the court. See, e.g., Schering Chem. Ltd. v. Falkman Ltd. [1982] 1 Q.B. 1, 39 (C.A.) (per Lord Templeman: "Thetimes of Blackstone are not relevant to the times of Mr. Murdoch.").

264. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at CNB/4.265. Id.266. Id. at MEP/5.267. Attorney-General v. South China Morning Post Ltd., No. 114 (Civil) Sept. 8, 1987, at 17, 23.268. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at CNBI5-6.269. Id. at CNB/13-14.270. Id. at CNB/6.271. Id. at CNB/15-16. See supra text accompanying note 169.272. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at CNB/15-16.273. Id. at CNB/16.274. Id. at CNB/13. See supra text accompanying notes 187-98. Justice Barnett stated that Article 10 is a factor in

the balance but that the Lords did not use the national security approach as a pronouncement of law.275. [1985] 1 Q.B. 526 (C.A.); see also supra text accompanying notes 80-93.276. [19751 2 W.L.R. 316 (H.L.(E.)); see also supra text accompanying note 99.


First, while Justice Barnett accepted the arguable claim of confidence, he pointed outthat the deterrence argument had little effect in Hong Kong. 277 Second, he reiteratedthe fact that the South China Morning Post was not part of the original breach, nordid it aid in the breach.27 8 Third, he stated that the government's claims could besatisfied by an accounting of profits or by an award of exemplary damages. 279 Thus,while the Attorney General had an arguable claim, it would not necessarily bedestroyed by the dismissal of the injunction. 280

Justice Barnett stated, however, that the press could not be compensated bydamages and rejected the argument that the harm in delay of publication wasinconsequential: the book and its contents were "hot news" and might not be at alater date.281 He accepted, in addition, the papers' argument that the freedom of thepress provisions in Article 19 of the International Covenant of Civil and PoliticalRights282 and Hong Kong's unique political situation were factors to be weighed inthe balance. 283 With respect to the latter he stated: "There is a particular sensitivityon the part of the Hong Kong public, to any constraint on or fettering of the free flowof information, comment or news. . , 284 The Attorney General's claim, therefore,did not outweigh or justify the potential damage of interfering with the freedom of thepress.

The Court of Appeal rejected Justice Barnett's reasoning, especially his view onthe use of damages as an alternative to an injunction. 285 In reinstating the injunction,the court adopted Lord Templeman's reasoning, pointing out that the differencesbetween Hong Kong and England were not sufficiently important to require theinjunction's dismissal. 286 The court also accepted the Attorney General's arguableclaim and held that his claim and the interest of national security justified restraintson the press. 287 The court concluded that there was no material difference between theharm to the Service in England and the harm to it in Hong Kong, as the Service actedfor both countries and was present in both. 288 The court dispensed with the lowercourt's concern over Hong Kong's political future by pointing out that the provisionsof Article 19 would remain in force after 1997 and by stating that courts do not reactto political pressure. 289 The situation after 1997, they continued, was irrelevant, as

277. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at CNB/16.278. Id.279. Id. at MEPI.280. Id.281. Id. at MEP/2.282. G.A. res. 2200 A (XXI) Mar. 23, 1976, reprinted in 6 I.L.M. 368, 374 (1967). Article 19 is similar to Article

10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. See supra note 187.283. Hong Kong reverts to Chinese control in 1997. See A Draft Agreement between the Government of the United

Kingdom of Great Britain and Northern Ireland, and the Government of the People's Republic of China on the FutureofHang Kong (Sept. 26, 1984), reprinted in 23 I.L.M. 1366 (1984).

284. Attorney-General v. South China Morning Post Ltd., No. 4644 (H.C.) Aug. 24, 1987, at MEP/3.285. Attorney-General v. South China Morning Post Ltd., No. 114 (Civil) Sept. 8, 1987.286. Id.287. Id.288. Id.289. Id.

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the protection of freedoms in the future would continue to depend on the integrity ofthe courts. 290

The Hong Kong case illustrates the British government's resolve to prevent thepublication of Spycatcher. It must be remembered that this case was not the only onethe government pursued beyond its borders. During the course of the summer, thegovernment was, in essence, fighting battles on several fronts at home and abroadand in the process expending time and energy to prevent the press from publishinginformation already published and freely available to the public.

Moreover, the Court of Appeal's decision may, in fact, establish a dangerousprecedent, given that Hong Kong will revert to Chinese control in 1997. The limitsof a free press may be determined by this case, and if so, the integrity of the courtsmay not be sufficient to prevent prior restraints on the press. By accepting the Houseof Lords' reasoning, the court implicitly rejected the concept that any delay inpublication interferes with the press's function of promptly providing the public withnews. With such a rejection, the court may indeed have established unfortunateprecedent.

The British government's success at obtaining temporary injunctions should notbe interpreted as an isolated incident of a government seeking to protect its vitalsecurity interests from disclosure by an irresponsible press. The information PeterWright disclosed was not classified, and while his actions may have been a breach ofhis duty to the state, the actions of the press were not. The press did not aid Wrightin breaching his duty. They proposed to do nothing more, as Lord Oliver noted, thantheir job: to collect and disseminate the news and thereby provide a forum for publicdiscussion of Wright's allegations.

The cases do, however, establish or reaffirm the fact that the freedom of thepress is limited in England and Hong Kong. By using the double-edged sword of abreach of confidence action and a contempt of court proceeding, the Britishgovernment can temporarily prevent the press from legally commenting on publicissues. When combining the legal theories, the government does not have to provethat discussion of the public issues will be harmful to the state. It need only presentan arguable case of a breach of duty, and as these cases demonstrate, that burden isnot great. All the government has to show is that the originator of the informationowed a duty of confidence, and the press is then under a fiduciary obligation not todisclose the material.

Once that is established, the press has the burden of showing an overridingpublic interest in publication. Their burden, on the other hand, is a heavy one. Theamount of prior dissemination of the material is not dispositive, nor is the interest indisclosing wrongdoing by the government. The former will be irrelevant because ofthe original duty of confidence and the latter useless because the courts seem torequire that such disclosures be made to the government itself. The government,therefore, instead of having to rely on internal measures to prevent disclosure or on

290. Id.

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the prosecution of those responsible, can achieve the same results by prosecuting thepress. It should also be remembered that these cases focused only on the temporaryinjunction. Thus, the issues raised had not yet been fully explored or decided.Nevertheless, for over a year the press was deprived of its ability to act as a forumfor discussion of issues that were matters of great public concern and rather widepublic knowledge.

The effect of these cases on the press is clear. The press can be prevented frompublishing information the government wishes to remain secret. That is not,however, the only effect. Because the government proceeded on a breach ofconfidence action, the precedents established in these cases may be applicable to allsuch actions. It may be that an employer as well as the government can use thesesame techniques to deter employees from divulging trade secrets or to stop the pressfrom publishing information about safety violations. Therefore, by expanding the lawin this instance, the courts may have opened the door for even wider restraints onopen discussion of public issues.

V. THE PERMANENT INJUNCTION

The underlying issues involved in the Spycatcher cases were not resolved untilOctober of 1988 when the House of Lords upheld the Chancery Court's dismissal ofthe temporary injunction. In deciding to dismiss the injunction the courts focused onfive issues: (1) whether Wright breached his duty of confidence when he published

Spycatcher; (2) whether the Observer and The Guardian breached their duty ofconfidence when they originally published Wright's allegation in 1986; (3) whetherthe Sunday Times breached its duty when it serialized portions of Spycatcher in 1987;(4) whether a permanent injunction was appropriate given the wide availability of thebook; and (5) whether the courts could issue a preventive injunction to prohibit thepapers from publishing or commenting on other information Wright may publish inthe future.

The government and the press raised essentially the same arguments they hadmade in the earlier cases. At trial, the Attorney General relied on several

propositions. 29' He argued that Wright owed a duty to the government not to discloseunauthorized information. Wright's duty was based both on his employment statusand the interests of national security. Because he breached that duty by writingSpycatcher, the publication of the book constituted a continuing breach. Thenewspapers knew that the information he disclosed was confidential and representeda breach of duty. Thus, when the newspapers received it, they stood in the sameposition as Wright, and because subsequent publication would not relieve him of hisduty, it likewise could not release the newspapers of theirs. The government, in

addition, relied on its national security interests, but instead of basing its claim onsecrecy, which of course was destroyed, it relied on the importance of promoting theefficiency and the reputation of the Service.

291. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 831-34 (Ch. D.).

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The newspapers contended that any duty of confidence that may have existedcould not extend to disclosures of serious iniquities, and thus, their publication of theWright allegations concerning Sir Roger Hollis and the destabilization of the Wilsongovernment were legitimate.29 2 The papers, moreover, argued that the publication ofSpycatcher and its wide distribution destroyed the confidential nature of theinformation and thereby destroyed any duty they may have had. Finally, they pointedout that the injunction sought by the Attorney General conflicted with the provisionsof Article 10 of the Convention for the Protection of Human Rights and FundamentalFreedoms. 293

The government responded by pointing out that publication could not destroy theduty of confidence, as the government itself was not responsible for the disclosure,and, further, that even if Wright's allegations were true, the iniquity defense did notjustify publication. The proper procedure was to notify the appropriate authorities,not the public.2 94

The courts resolved these issues by what appears to be a straightforwardapplication of the law of confidence. The decisions, however, are ambiguous. Insome ways, they potentially offer the newspapers greater protection from furtherinroads on their freedom to publish, and in other ways, they provide the governmentwith additional means to limit the free flow of information.

A. Chancery Division

Judge Scott began his opinion by providing an overview of the history of thecase and by comparing the allegations in Spycatcher to those that had been previouslypublished in books, interviews, and on television programs.295 He then turned to theissues of law and fact. He characterized Wright's duty to the government as one ofsecrecy rather than confidence because an actual confider-confidant relationship didnot exist between Wright and the government. Wright, therefore, was obligated tomaintain secrecy with respect to information he received whether it was fromsomeone to whom he owed no duty of confidence or was information he discoveredhimself.296 The distinction is not particularly significant because the obligationimposed did not have to arise from an express or implied contract or a particularrelationship; it could be imposed by equity if the circumstances by which Wrightobtained the information created a confidential obligation.2 97

In the case of Wright, however, Judge Scott refused to impose a blanket duty ofsecrecy covering all the information Wright may have received. The duty, he said,could not extend to trivial or useless information (the Service meal plan or the amountof paper shredded in a waste reduction campaign), or necessarily to information

292. Id. at 834.293. Id. at 835; see supra note 187.294. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 835 (Ch. D.).295. Id. at 813-31.296. Id. at 837.297. Id. at 838. See also Faccenda Chicken Ltd. v. Fowler [1986] 3 W.L.R. 288 (C.A.); Seager v. Copydex Ltd.

[1967] 1 W.L.R. 923 (C.A.); supra text accompanying notes 69-74.

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readily available to the public. Moreover, he noted that when the government, andnot a private citizen, sought to protect its information, it had to show that disclosurewould harm the public interest in secrecy and that a countervailing interest was notsuperior. 298 The extent of Wright's duty, therefore, was "dependent, in relation to theinformation sought to be protected, on the relative weight of the needs of nationalsecurity that the information should be kept secret, and the public or private interest... that the information should be free to be disclosed.' '299

Although Judge Scott held that the government's interest in secrecy outweighedany interest Wright may have had in publishing Spycatcher, his interpretation of theduty owed to the government is noteworthy. He appeared to place the burden on thegovernment to show its interest was paramount and limited the extent of secrecy thegovernment could claim was necessary. He refused to speculate, for example,whether the result might have been different had Wright only published trivialinformation, allegations previously disclosed, or allegations of wrongdoing by theService. 300 His interpretation, however, should not be read as opening the door forother members of the Service to publish unauthorized but limited memoirs. Heendorsed the current system requiring members and ex-members to obtain authorityprior to any publication and accepted the Attorney General's argument that "primafacie" members of the Service "must carry their secrets with them to the grave. ' 30'

Even though Judge Scott held that Wright had breached his duty, he did not holdthe newspapers to the same standard. He limited the duty of third parties whoobtained information knowing it was confidential to circumstances that raised "anobligation of conscience. ' 30 2 He pointed out that there could be circumstancesinvolving public interest factors that applied to a third party and not to the originalconfidant. In the case of the newspapers, those factors were the press's legitimate rolein disseminating information to the public, the defense of iniquity, and constraintsimposed by Article 10.303

Judge Scott acknowledged that Article 10 had not been incorporated into Englishlaw, but he accepted the Sunday Times' argument that when courts balance thecompeting public interests of the press and the government, they should do so in amanner consistent with the government's treaty obligations. Because Article 10 onlyallows for restrictions on the press that are necessary, he relied on two decisions bythe European Court of Human Rights3° 4 to define necessary and held that the presscould not be restrained unless there was a "pressing social need" for the restraint,and the restraint was "proportionate to the legitimate aim pursued." 305

298. Attorney-General v. Guardian Newspapers Ltd. (No. 2) 11988] 2 W.L.R. 805, 840-46 (Ch. D.). See alsoAttorney-General v. Jonathan Cape Ltd. [1975] 3 W.L.R. 606 (Q.B.D.); Australia v. John Fairfax & Sons Ltd. [1980]147 C.L.R. 39.

299. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 846 (Ch. D.).300. Id. at 854-55.301. Id.302. Id. at 848.303. Id. See supra text accompanying notes 81-93, 187.304. Lingens v. Austria [1986] 8 E.H.R.R. 407; Sunday Times v. United Kingdom [1979] 2 E.H.R.R. 245.305. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 851 (Ch. D.).

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Judge Scott held that the government's claim for an injunction against theObserver and The Guardian for the articles they published in 1986 was not justifiedby a pressing social need. First, the articles, he stated, presented fair reports of thegovernment's action in Australia. While they contained information that had not beenpreviously published, the amount of information was not sufficient to constitute abreach of duty. Second, he accepted the newspapers' argument that the allegationsconcerning the destabilization of the Wilson government and the plot to assassinatePresident Nasser qualified under the iniquity defense. 3°6 The newspapers had alegitimate basis for reporting the information directly to the public; they were notbound to limit the disclosure to an investigating authority. Judge Scott acknowledgedthat the government might have been embarrassed by the disclosure, but he held thatembarrassment was not a sufficient interest to prevent publication:

[T]he ability of the press freely to report allegations of scandals in government is one of thebulwarks of our democratic society. It could not happen in totalitarian countries. If the pricethat has to be paid is the exposure of the government of the day to pressure or embarrassmentwhen mischievous and false allegations are made, then, in my opinion, that price must bepaid. 307

He concluded that the editors of those papers properly decided that the publicdisclosure of the confidential material was justified.

The Sunday Times, however, had in his judgment breached their duty ofconfidence. The serialized excerpt of Spycatcher was not limited to the Service'swrongdoing, nor had the editors exercised discretion in their determination of whatwas and was not legitimate information to place before the public. Accordingly, heheld the papers liable for any profits that resulted from the July 1987 article. 30s

Judge Scott's opinion with respect to the Millett injunction is troubling. Eventhough he stressed the important role of the press in a democratic society, he undercutthat role by subjecting the papers to the traditional balancing test used in the law ofconfidence. Thus, the Sunday Times was held liable because its editors did notproperly weigh the competing interests involved, and the Observer and The Guardianstepped beyond the bounds of legitimate public interest by publishing Wright'sallegations about Burgess and Churchill's daughter. Unfortunately, it is not clearwhat is or is not in the public interest. The balance appears to be on the side of thegovernment and in favor of restraint. The press is free to report allegations of grossabuse by the government, but they are not free to comment on abuses that may notrise to that level but are nevertheless appropriate subjects for public debate. Therestraints are imposed not because the information necessarily threatens nationalsecurity, but because the source of the information itself was one who was obligatedby virtue of his employment to remain silent.

306. See supra text accompanying notes 81-93.307. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 858-59 (Ch. D.).308. Id. at 859-60.

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The newspapers, however, fared better when it came to the permanentinjunction. Judge Scott again engaged in a balancing test, weighing the claims ofnational security against the public interest in freedom of the press. In support ofrestraint, the government relied on several claims made by Sir Robert Armstrong. 30 9

Sir Robert first asserted that further disclosures would damage the trust members ofthe Service had for each other. Judge Scott rejected this claim, noting that the damagehad already been done. Second, Sir Robert argued that others could be tempted tofollow Wright's example. Judge Scott dismissed this claim as well by pointing outthat if another ex-Service member tried to publish his memoirs in England, he wouldbe enjoined from doing so, and if he sought to publish outside the jurisdiction, Wrightalready served as an example.

Sir Robert also argued that if a permanent injunction were not granted, the presscould pressure current or ex-members to confirm, deny, or expound on Wright'sallegations. Judge Scott accepted that this claim should weigh in the balancing, buthe did note its speculative nature. Next, Sir Robert argued that informers and friendlyforeign nations would lose confidence in the Service if the injunction were notgranted. As with earlier claims, Judge Scott simply noted that the damage had alreadyoccurred. Judge Scott also rejected the government's claim that an injunction wouldprotect against the disclosure of the methods, personnel, and organization of theService. He noted that the claim could justify prohibiting members from publishingtheir memoirs, but it could not justify enjoining the press, as that information wasalready available. Finally, Judge Scott held that the government's claim that aninjunction would improve the morale of the Service was beyond the scope of the lawof confidence. The duties owed by the press were not based on the maintenance ofmorale, but on the maintenance of secrecy.

In refusing to grant the permanent injunction, Judge Scott accepted the papers'arguments that the information the government sought to restrain was in the publicdomain, and, moreover, it was information that could properly be placed before thepublic. He held, therefore, that because no "obligation of conscience" existed, thepapers were free to publish and comment on the Wright allegations. 310

Judge Scott also refused to grant the Attorney General's request for a preventiveinjunction prohibiting the papers from publishing any part of "Spycatcher 2," shouldit surface. He recognized that the government's fear of an additional volume ofmemoirs was legitimate, but he refused to rule on issues that had not yet arisen. Hedid note, however, that the remedy of an accounting of profits was available. 311

Even though the newspapers were successful, their success was limited. Thecourt's refusal to grant a permanent injunction was based primarily on the previouspublication of Spycatcher and its widespread availability. The relative weight givento the competing interests no doubt would have been different if the government hadtaken steps to prevent earlier publications of the same allegations made by Wright or

309. Id. at 860-61. See also supra note 120.310. Attorney-General v. Guardian Newspapers Ltd. (No. 2) 11988] 2 W.L.R. 805, 862-63 (Ch. D.).311. Id. at 865.

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if Spycatcher had not been published. Thus, the decision was not based on arecognized right of newspaper editors to choose what information they will or will notpublish, but rather it was based on the recognition that, in this case, injunctive reliefcould serve no purpose. There are, of course, legitimate limits that may be imposedon the press, but those limits must be clearly defined. By relying on the balancing testincorporated in the law of confidence, this decision suggests that if confidentialinformation concerns the Service, the balance will fall in favor of the governmentunless injunctive relief is futile. The press, in essence, is in no better position than itwas at the outset of the litigation.

B. The Appellate Decisions

Both the Court of Appeal and the House of Lords upheld the lower courtdecision and, in doing so, accepted Judge Scott's interpretation of the law and itsapplication to the facts. Thus, the courts refused to grant a permanent injunctionagainst the papers. They held that the Observer and The Guardian had not breachedtheir duties, but that the Sunday Times had, and they refused to grant the AttorneyGeneral a preventive injunction with respect to "Spycatcher 2."

Because the various judges primarily reiterated Judge Scott's conclusions, eachopinion will not be discussed in detail. Rather, the opinions will be used todemonstrate that when the government uses the law of confidence to restrain the pressfrom publishing information connected to national security, it will be successfulunless the information the press seeks to disclose was already available to the publicthrough no fault of the press.

All of the judges accepted the premise that the freedom of the press is limited bythe law of confidence and that the press is not entitled to any greater protection thanthat owed to an ordinary citizen. The balance of competing interests will be weighteddifferently, however, simply because of the role of the press to disseminateinformation to the public. If the press is involved in a breach of confidence action,the courts, because of the public interest in freedom of the press, must engage in abalancing test. If an action is between the government and the press, the governmenthas the burden to prove not only that the information is confidential, but also that itis in the public interest to withhold the information. 312

Lord Keith of Kinkel, for example, relied on the distinction established inAustralia v. John Fairfax & Son Ltd.313 to demonstrate the difference between aclaim of confidence by the government and a claim by a private citizen:

The equitable principle has been fashioned to protect the personal, private and proprietaryinterests of the citizen, not to protect the very different interests of the executivegovernment. It acts, or is supposed to act, not according to standards of private interest, butin the public interest. This is not to say that equity will not protect information in the hands

312. Id. at 892, 906; see also Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776,783-85(H.L.(E.)); Attorney-General v. Jonathan Cape Ltd. [1976] 1 Q.B. 752; Australia v. John Fairfax & Sons Ltd. [1980] 147C.L.R. 39.

313. [1980] 147 C.L.R. 39.

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of the government, but it is to say that when equity protects government information it willlook at the matter through different spectacles .... Accordingly, the court will determinethe government's claim to confidentiality by reference to the public interest. Unlessdisclosure is likely to injure the public interest, it will not be protected. 314

If the government's claim of confidence is based on national security, injury to thepublic interest will be presumed, and the public interest in maintaining secrecy will,prima facie, outweigh the public interest in freedom of the press. 3 15 In order toovercome the prima facie case, the press must show that the information is no longerconfidential, that it is trivial or useless, or that it concerns iniquities. The opinions ofthe various judges on appeal, however, suggest that the press is not likely toovercome the prima facie case unless it proves that the information is notconfidential.

1. Loss of Confidentiality

The majority opinions of both the Court of Appeal and the House of Lordssuggest that if the press can show that the information they seek to publish is in the

public domain, the government will be denied permanent injunctive relief. Thevarious judges, for example, agreed that the information the newspapers sought to

publish was no longer confidential: Spycatcher had been widely published and it wasreadily available in England. However, the judges used different rationales.

Lord Keith of Kinkel, for example, did not base his decision on a balance of thecompeting interests involved, but simply stated that all of the harm that could haveresulted to the Service had already occurred. He noted, however, that there could be

a case where widespread publication would not destroy the duty of confidence, buthis examples were limited to private, not government, interests. 316 Lord Griffithsapproached the issue by balancing the competing interests and held that the freedomof the press outweighed the national security interest because the latter had beendiminished by previous publications. 317 Lord Goff took a different approach. Hereserved the question of whether an obligation owed, even one owed by the originalconfidant, could continue once the subject matter of the obligation was destroyed by

publication. He suggested that the appropriate remedies may be criminal or legal andnot equitable ones. 318

Sir Donaldson relied on the balancing test with respect to the Observer and The

Guardian, but in his dissent he argued that the Sunday Times should have beenrestrained from serializing Spycatcher. He stated that because the paper stood in the

shoes of Wright by virtue of its having purchased the serialization rights fromHeinemann, it could be restrained from publishing the full excerpts of the book.3 19

314. Id. at 51-52.315. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) 1988] 2 W.L.R. 805, 868, 892, 908-09 (C.A.);

Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 815 (H.L.(E.)).316. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 786 (H.L.(E.)).

317. Id. at 798.318. Id. at 810-13.319. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 887 (C.A.); see also

Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 802 (H.L.(E.)) (per Lord Griffiths).

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The majority opinions rejected Sir Donaldson's analysis. While the judgesrecognized that it was inconsistent to prohibit Wright and Heinemann from directlypublishing what the Sunday Times could publish indirectly, they relied on a balancingtest to justify serialization. The government's interest was not sufficient to preventthe newspaper from publishing in serialized form a book that could be purchased froma bookseller or borrowed from a library.320

Under any of the above approaches, a newspaper should be able to defeat agovernment claim of confidentiality. If the balancing test is used, the public interestin a free press should prevail because once the information is published, any injuryto the government will already have occurred. If that test is not used, the press shouldstill prevail because injunctive relief, as a remedy, would not serve any purpose. Anewspaper could still be subject, however, to a legal or criminal remedy, such as anaccounting of profits, but again, that may depend on where the balance of interestslies and whether the paper directly aided the original confidant.321

2. Trivial or Useless Information

The defense that the information is trivial or useless and thus cannot beconfidential relies on the common sense notion that the interest involved is not worthprotecting. In a commercial setting the defense would be absolute, but in the contextof national security it may be limited.

As noted earlier, Judge Scott suggested that the courts were not in a position todraw the line between what was and was not trivial unless those who could hadrefused to draw any line at all:

National security is the responsibility of the executive government; what action is needed toprotect its interests is ... a matter upon which those upon whom the responsibility rests, andnot the courts of justice, must have the last word. It is par excellence a non-justiciablequestion. The judicial process is totally inept to deal with the sorts of problems which itinvolves. 322

Lord Griffiths echoed this point of view, stating that a bright line rule is necessary toprotect the secrecy of the Service. He emphasized that members of the Service shouldbe prohibited from releasing any information, regardless of how trivial it may seem,because information that may seem trivial to one person could provide the missinglink sought by a hostile agency. 323

Even though he was referring to members of the Service, it is unlikely that LordGriffiths would hold the press to a different standard. If a balancing test were used,the government interest in secrecy would outweigh the press's interest in publication.What is ironic is that the more trivial the information the less likely the press will beable to justify disclosure based on a legitimate public interest. The government,

320. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 792, 816-17 (I.L.(E.));Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 900, 914 (C.A.).

321. See supra text accompanying notes 76-79.322. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 841 (Ch.D.) (quoting Council

of Civil Serv. Unions v. Minister for the Civil Serv. [1985 A.C. 374, 412).323. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 795 (H.L.(E.)).

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however, would still be able to justify restraint based on an argument that the trivialinformation could be damaging if used by a hostile agency. Of course, if theinformation is utterly trivial-the meal plan of the Service-the government wouldbe hard pressed to show any potential damage, but in such a case, it is unlikely thatthe press would be interested in disclosing the information anyway. A defense basedon the trivial nature of the information, therefore, will not, in most cases, besufficient to overcome the government's prima facie case.

3. The Iniquity Defense

While the issue of whether the Observer and The Guardian breached their dutyof confidence based on the 1986 articles was of little practical significance, thisaspect of the Spycatcher cases, more than any other, demonstrates the strength of thegovernment's ability to limit the freedom of the press and, thereby, public debate.

At trial and on appeal, the two papers relied on the iniquity defense. They arguedin essence that the public interest in exposing the wrongdoing by the Serviceoutweighed the government's interest in maintaining secrecy. The courts at all threelevels accepted the papers' argument, but in doing so, the courts did not provide clearguidelines as to what is necessary to justify disclosure based on the defense. Twoconflicting approaches emerge from the various opinions. In one, the governmentwould be the ultimate decisionmaker, and in the other, the press would decide.

Under the test established by Sir Donaldson, 324 a newspaper would not bejustified in publishing an allegation concerning the Service unless the parliamentarysystem broke down; that is, the paper would first have to report the allegation toeveryone in the chain of command, including the Director of the Service, the PrimeMinister, and the Opposition, and if they all refused to conduct an investigation, thepaper could publish the allegation. The paper, however, would be justified inpublishing only the allegation itself, not any of the supporting evidence. Accordingto Sir Donaldson, disclosure of the evidence could not be justified because of theimmense damage that could result if the operational methods of the Service werediscovered.

Sir Donaldson also limited what could constitute iniquity. He suggested thateven though the Service was not above the law, common sense and discretion shouldprevail. Thus, in his view, an allegation concerning burglary or surveillance wouldnot qualify as iniquity, but an allegation of physical violence would.

Lord Griffiths essentially agreed with Sir Donaldson. He suggested that an editor

should first inform the Treasury Solicitor in order to enable the government to seekan injunction so that the courts could decide the issue. 325 He suggested, for example,that if Wright had first approached the newspapers with the allegations concerning SirRoger Hollis, and the Nasser and Wilson plots, the editors' duty would have been "to

324. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 876-80 (C.A.).325. Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 3 W.L.R. 776, 804-05 (H.L.(E.)).

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report the allegations immediately to the appropriate minister and only to considerpublication ... if convinced that no effective action had been taken."326

If the views of Lord Griffiths and Sir Donaldson represent the current state of theiniquity defense, then realistically, in any case involving serious misconduct by thegovernment, it is the government and not the press that decides what information isappropriate to place before the public. Even if an editor were to contact the TreasurySolicitor, so that the courts, rather than the government, made the ultimate decision,the Spycatcher cases themselves suggest that the courts would defer to thegovernment unless the information were already in the public domain. The govern-ment, therefore, will decide how much and what kind of information the public willreceive.

The other interpretation of the defense would leave the decision in the hands ofthe editors. Under this approach, the editor would have to conduct the balancing testincorporated in the law of confidence and in Article 10. The editor would first haveto determine if the allegation were credible, but he would be able to rely on theapparent credibility of his source. 327 Judge Bingham, for example, stated that thenewspapers were entitled to rely on the apparent credibility of Wright given his longexperience with the Service. 328 Next, the editor would have to determine what harmcould result from publication and consider whether the disclosure should be made tothe appropriate authorities rather than to the public. 329 Finally, he would have toweigh the competing interests. Under this approach, if the editor "asks himself theright questions and gives them the right answers, that is enough; he is not required tosubmit his copy to the authorities for clearance before publication. ' 330

It is not clear which interpretation of the defense represents the current view ofthe law. The majority of the opinions in the House of Lords, for example, did notfocus on the issue. The Lords simply upheld the lower court's decision, noting thatthe disclosures were limited and represented a fair report of the government's actionin Australia. However, given the history of the Spycatcher cases, the ease with whichthe courts imposed the temporary injunction, and the strong presumption in favor ofthe protection of government secrets in cases of national security, the views held bySir Donaldson and Lord Griffiths may be controlling. If so, the only means for thepress to overcome the government's prima facie case is to prove that the informationhas already been published. A defense based on iniquity would not be sufficientexcept under very limited circumstances. And even if the less restrictive view iscontrolling, the defense would still be limited to those few cases in which the balanceof interests would justify disclosure.

Thus, even though the government lost its case with respect to the permanentinjunction, it may have won the battle. The decisions of the three courts provide the

326. Id. at 804.327. See Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, 897, 917 (C.A.).328. Id. at 917.329. Id. at 897.330. Id. at 898.

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government with plenty of ammunition to use against the press and leave the presswith few workable defenses.

VI. CONCLUSION

The Spycatcher cases leave several issues unresolved: the role of Article 10 incases involving the press and the law of confidence, the status of the iniquity defense,and the scope of the law of confidence itself. The latter may have been expanded toincorporate actions based on deterrence or based on detriment to the morale of thoseaffected by disclosure of confidential material. In its attempt to prevent the press fromdisclosing Wright's allegations, the government may have expanded the law to suchan extent as to limit the freedom of the press to publish information relating togovernment abuse to but a few narrow instances when the public is already aware ofthe information.

The cases show that if a newspaper publishes confidential information, thegovernment will succeed in restraining the paper from further disclosures until anaction on the merits occurs. It will also be able to prevent other papers fromcommenting on the information by an action for contempt of court. When the trial onthe main action occurs, the government is likely to win unless the informationbecomes available by publication abroad. The government, therefore, has thepotential to determine what information the public receives and to define the scope ofany inquiry into its activities. The government need only claim that it is protecting thenational security of the country, and unless its claim has absolutely no merit, the presswill be unable to serve as a forum for public comment and debate.

If the freedom of the press is one of the bulwarks of a democratic society, thenthe Spycatcher cases may be but the first attack in an onslaught against the press.While one might be tempted to empathize with a government attempting to protectthe secrecy of its intelligence agencies, it is not the agencies or the government thatsuffer if the attacks are successful, but the very institutions designed to protect a freesociety. When a government is capable of insulating itself from criticism and chargesof abuse, its citizens are denied the information necessary to make responsiblechoices, and in the end, they, not the press, must bear the ultimate consequences ofthe government's actions.

Philomena M. Dane

19891

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